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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

School  of  Law  Library- 
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THE 


Mechanics  Lien  Law 


OF 


NEW   JERSEY 

CONTAINING 

THE  REVISION  OF  1898  AND  ALL  SUPPLEMENTS 

AND  AMENDMENTS  THERETO,  WITH  NOTES 

OF  DECISIONS,  AND  A  COLLECTION  OF 

FORMS;     ALSO    THE    MUNICIPAL 

IMPROVEMENTS    LIEN    ACT 

OF  1892,  WITH  NOTES. 


SBCOND  KonrioN 


BY 

ED\VARD  J.   LUCE 

OF  THE  BERGEN  COUNTY  BAR. 


NEWARK,  N.  J. 
S  O  N  E  Y    &    SAGE 

1910. 


T 

\9I6 


Copyright,  1910, 
By  SONEY  &  SAGE. 


v3 


I>REFi^CE, 


In  the  present  work  the  writer  has  included  the  text  of 
the  Mechanics'  Lien  Act,  as  revised  in  1898,  with  its  subse- 
quent sujiplenients  and  amendments,  and  also'  the  amended 
text  of  the  act  of  1892,  which  he  has  styled  the  Municipal 
Improvements  Lien  Act.  He  has  also  essayed  to  present,  in 
an  introductory  chapter,  an  historical  summary  of  the  va- 
rious acts  passed  by  the  legislature  of  New  Jersey,  relating 
to  building  liens,  from  the  earliest  act  of  1820  to  the  present 
time.  In  doing  this  he  has  set  out,  quite  fully,  the  text  of 
these  various  earlier  acts;  so  fully,  it  is  believed,  that  the 
practitioner  will  have,  in  this  one  manual,  a  substantially 
complete  apparatus ;  and  will  rarely  need  to  turn  to  the  or- 
iginal session  laws. 

In  preparing  the  notes,  he  has  tried  to  collect  all  the  de- 
cisions, and  to  refer  to  them  on  each  point  that  they  either 
decide  or  discuss.  In  doing  this  he  has  aimed  usuaUy  to 
state  somewhat  fully  what  they  decide  or  discuss,  in  lieu 
of  a  bare  reference  to  them.  In  some  instances,  he  has  also 
ventured  to  comment  upon  certain  of  the  decisions.  He  has 
tried  to  make  this  second  essay  a  distinct  improvement  upon 
his  first  attempt;  and  trusts  that  it  will  be  found  that  he 
has  measurably  succeeded  in  that  endeavor,  and  has  thus 
properly  shown  his  appreciation  of  tlie  favor  accorded  to  that 
previous  work. 

In  some  respects  the  present  text  of  the  Mechanics'  Lien 
Act,  and  much  more  that  of  the  Municipal  Improvements 
Act,  might  very  properly  be  amended.  In  the  case  of  the 
former,  what  is  needed  is  re-editing,  rather  than  any  sub- 
stantial change  in  its  provisions;  and  in  the  case  of  both, 
no  changes  should  be  made  unless  they  are  approved  by 
counsel  familiar  with  the  previous  course  of  judicial  de- 
cision upon  the  subject. 

In  preparing  this  edition  all  acts  of  the  legislature,  in- 
cluding those  of  the  ]3 resent  session  (1910),  have  been  cov- 
ered.    For  decisions,  the  Atlantic  Reporter  has  been  exam- 


iv  Pkefaoe. 

ined  tlirough  volume  75;  the  Law  Reports  through  47 
Vroom;  the  Equity  Eeports  through  3  Buch.  and  the  Law 
Journal  through  Volume  31. 

The  legislation  of  1910  has  heen  incorporated  in  the 
work  by  way  of  addition  to  the  text  and  notes,  as  they 
were  prepared  before  those  enactments  were  passed.  This 
course  has  been  pursued,  as  the  one  most  likely  to  prove  con- 
venient and  useful. 

In  citing  cases,  I  have  usually  referred  to  the  official  re- 
ports, but  in  some  instances  the  reference  is  to  the  Atlantic 
Reporter,  instead,  ^\^lerever  such  a  case  has  been  published 
in  the  official  reports,  its  citation  thereto  will  be  found  to  be 
given  in  the  table  of  cases  at  the  end  of  this  book. 

August  15,  1910.  EDWARD  J.  LUCE. 


Ti^BLE   OF  CONTENTS. 


Chapter  I,     Historical  Summary  of  Building  Lien  Legisla- 
tion.    Page  3. 

Chapter  11.     The  Act  of  1898.     Page  31. 

Chapter  III.     The  Mmiicipal  Improvements  Act  of  1892. 
Page  149. 

Chapter  IV.     Page  169. 

Table  of  Cases.     Page  211. 

Index.     Page  221. 


CHAPTER    I, 


Historical  Summary  of  the  Legislation  on  the 
Subject  of  BxnLDiNG  Liens. 

(1) 


HISTORICAL  SUMMARY  OF  BUILDING 
LIEN  LEGISLATION. 


As  is  pointed  out  by  Vice  Cliancellor  Stevenson,  in  his 
valuable  opinion  in  McNah,  etc.,  Co.  v.  Paiersmi,  Bid.  Co. 
&t  al.,  1  Buch.  133,  the  legislation,  in  the  State  of  New 
Jersey,  on  the  subject  of  Mechanics'  Liens,  begins  with  the 
act  of  February  25,  1820  (1820,  p.  124). 

In  the  same  opinion,  the  Vice  Chancellor  notes  that  the 
first  Mechanics  Lien  Law  ever  enacted  in  this  country 
was  the  Maryland  Statute  (1791,  c.  45,  H  X.)  ;  that  it 
concerned  only  ''the  territory  of  Columbia  and  the  City  of 
Washington,"  and  was  enacted  "for  the  encouragement  of 
master  builders  to  undertake  the  building"  of  houses  in  the 
projected  City  of  Washington ;  and  that  the  lien,  given  by 
it,  was  given  only  to  those  to  whom  the  owner  of  the  prop- 
erty, subject  to  the  lien,  was  indebted. 

He  further  notes  that  the  next  statute  on  the  subject,  the 
Pennsylvania  act  (1803,  p.  591),  gave  the  lien  only  to  those 
to  whom  the  owner  of  the  property  was  indebted ;  but  was 
shortly  aftenvard  followed  by  an  act  (1806,  p.  480),  nar- 
row in  its  territorial  scope  (the  City  of  Philadelphia),  which 
undertook  to  give  a  lien  to  claimants  to  whom  the  owner  was 
not  himself  indebted. 

He  then  says :  "Here  we  have  the  origin  of  the  lien  which 
is  charged  upon  the  property  of  one  man  to  pay  another 
man's  debts.  This  is  the  statute  which  first  imposed  upon 
the  owners  of  real  estate,  who  desire  to  improve  their  prop- 
erty, and  to  make  contracts  for  the  erection  of  buildings 
thereon,  the  onerous  task  of  discovering  who  the  creditors 
of  their  contractors  are,  and  then  seeing  that  their  claims  are 
satisfied  so  far  as  they  have  arisen  from  the  furnishing  of 
labor  or  material  to  the  erection  of  the  owners'  buildings." 
Contrasting  this  sort  of  a  lien  with  that  given  by  the  earliest 
acts,  he  says :  "The  first  lien,  the  elemental  mechanic's  lien, 
(3) 


4  Mechanics  Lien  Law. 

is  little  more  than  aai  extension  of  the  common  Irav  lien  af- 
forded to  large  numbers  of  purveyors  of  labor  and  materials 
who  add  value  to  chattels  under  contract  with  the  owner 
thereof.  The  second  lien,  arbitrarily  gTanted  to  the  con- 
tractor or  materialman  between  whom  and  the  owner  there 
is  no  privity  whatever,  so  far  as  I  am  aware,  has  no  analogy 
in  the  common  law,  and  stands  in  many  respects,  directly 
in  conflict  with  fundamental  principles  of  justice.  There  are 
grounds  for  claiming,  as  recited  in  the  original  Maryland 
statute  of  1791,  that  a  mechanic's  lien,  for  the  protection 
of  the  party  with  whom  the  owner  of  the  building  contracts, 
encourages  the  erection  of  buildings,  but  it  would  seem 
that  the  extension  of  this  lien  to  the  protection  of  the  cred- 
itors of  the  party  witli  whom  the  owner  contracts,  must  often 
have  the  effect  to  discourage  the  erection  of  buildings." 

Again  at  p.  139,  the  Vice  Chancellor,  points  out  another 
obvious  distinction,  between  a  lien  given  to  a  wage  earner 
and  one  given  to  a  material  man  or  an  employer  of  laborers. 
He  says:  '^The  general  policy  of  the  law  may  be  considered 
to  favor  and  prefer  the  claims  of  all  wage  earners,  whether 

on  sea  or  land ; but  there  is  no  principle  of  law, 

and  no  general  policy  or  theory  recognized  by  law,  apart 
from  the  mechanics  lien  statutes,  which  specially  favors 
the  collection  of  debts  due  to  contractors  and  merchants 
merely  because  such  debts  have  been  created  in  the  erection 
of  buildings  whose  owners  are  not  liable  for  such  debts." 

These  observations  of  Vice  Chancellor  Stevenson  are  a 
most  useful  preface  to  the  review  of  the  legislation  in  this 
State  on  the  subject  of  mechanics  liens  to  which  we  now 
address  ourselves. 

The  act  of  February  25,  1820  (1820,  p.  124),  as  has 
been  said,  was  the  first  statute  on,  the  subject  passed  in  this 
State.  Omitting  parts  not  here  essential,  that  act  was  as 
follows : 

"An  Act  securing  to  mechanics  and  others,  pa^onent  for 
their  labor  and  materials  in  erecting  any  house  or  other 
building  M'ithin  the  limits  therein  mentioned. 

"^Wherms  Edward  Sharp,  Esquire,  of  Camden,  in  the 
County  of  Gloucester,  has  by  his  memorial  represented  to 
the  legislature,  that  he  is  about  to  lay  off  and  divide  into 
building  lots,  and  as  soon  as  may  be,  sell  and  dispose  of 
the  same,  a  certain  tract  of  land  now  owned  by  him,  in  and 


HisTORiCAX  Summary.  6 

adjoining  to  tlie  town  of  Camden  aforesaid,  bounded  and 
described  as  follows^  to  wit  (here  follows  a  long  description 
of  the  lands)  : 

"And  ichereas  The  said  Edward  Sharp  hath  further  rep- 
resented that  it  would  greatly  encourage  the  erection  of 
buildings  on  the  said  lots  so  to  be  laid  off  and  divided  as 
aforesaid,  and  thereby  more  speedily  enlarge  and  improve 
the  said  town  of  Camden,  to  secure  by  law  to  mechanics 
and  others,  payment  for  their  labor  and  materials  in  erecting 
any  building  upon  the  said  tract  of  land ;  all  which  appear- 
ing to  be  just  and  reasonable, 

Sec.  1.  Be  IT  exacted  hy  the  CoiincU  and  Geneml  As- 
semhly  of  this  State,  and  it  is  hereby  enacted  hy  the  authority 
of  the  same.  That  all  and  every  dwell itighoixse  or  other  build- 
ing hereafter  constructed  and  erected  within  the  tract  of  land 
above  described,  shall  be  subject  to  the  payments  of  the  debts 
contracted  for  or  bv  reason  of  anv  work  done  or  materials 
found,  and  provided  by  any  brickmaker,  bricklayer,  stone- 
cutter, mason,  lime  merchant,  carpenter,  painter  and  glazier, 
ironmonger,  blacksmith,  plasterer  and  lumber  merchant,  or 
any  other  person  or  jjersons  employed  in  furnishing  ma- 
terials for  or  in  the  erecting  and  constructing  such  house  or 
other  building;  but  if  such  house  or  other  building  should 
not  sell  for  a  sum  of  money  sufficient  to  pay  all  the  de- 
mands for  work  and  materials,  then  and  in  such  case,  the 
same  shall  be  averageil  and  each  of  the  creditors  paid  a  sum 
proportioned  to  their  several  demands:  promded  always, 
that  no  such  debt  for  work  and  materials  shall  remain  a 
lien  on  the  said  houses  or  other  buildings  longer  than  two 
years  from  the  commencement  of  the  building  thereof,  im- 
less  an  action  for  the  recovery  of  the  same  be  instituted,  or 
the  claim  filed,  within  six  months  after  performing  the  work 
or  furnishing  the  materials,  in  the  office  of  the  clerk  of  the 
inferior  court  of  common  pleas  of  the  said  county  of  Glou- 
cester: and  provided  also,  that  each  and  every  person  hav- 
ing received  satisfaction  for  his  or  their  debt,  for  which  a 
claim  shall  be  filed,  or  action  brought  as  aforesaid,  shall  at 
the  request  of  any  person  interested  in  the  building  on  which 
the  same  was  a  lien,  or  in  having  the  same  lien  removed, 
or  of  his,  her  or  their  legal  representatives  on  payment  of 
the  costs  of  the  claim  or  action,  and  on  tender  of  the  costs 
of  office  for  entering  the  satisfaction,  within  six  days  after 


6  Mechajs^ics  Lien  Law. 

such  request  made,  enter  satisfaction  of  tlie  claim  in  the 
office  of  the  clerk  of  the  court  where  such  claim  shall  be 
filed  or  such  action  brought,  which  shall  forever  thereafter 
discharge,  defeat  and  release  the  same:  and  if  such  person, 
having  received  such  satisfaction  as  aforesaid,  by  himself, 
or  his  attorney,  shall  not  within  six  days  after  request  and 
payment  of  the  costs  of  the  claim  or  action  as  aforesaid,  and 
tender  as  aforesaid,  by  himself  or  his  attorney  duly  author- 
ized, enter  satisfaction  as  aforesaid,  he,  she  or  they  neglect- 
ing or  refusing  so  to  do,  shall  forfeit  and  pay  unto  the  party 
or  parties  aggTieved,  any  sum  of  money  not  exceeding  one- 
half  of  the  debt  for  which  the  claim  was  filed,  or  action 
brought  as  aforesaid,  to  be  sued  for  and  recovered  by  the 
person  or  persons  injured,  in  like  manner  as  debts  are  now 
recoverable  by  the  laws  of  this  state. 

Sec.  2.  And  be\  it  enacted.  That  in  all  cases  of  lien 
created  by  this  act,  the  person  ha^dng  a  claim  filed  agree- 
ably to  the  provisions  hereof,  may  at  his  election  proceed 
to  recover  it  by  personal  action,  according  to  the  nature  of  the 
demand  against  the  debtor,  his  executors  or  administrators, 
or  by  scire  facias  against  the  debtor,  and  owner  or  owners 
of  the  building,  or  their  executors  or  administrators;  and 
where  the  proceeding  is  by  scire  facias,  the  writ  shall  be 
served  in  like  manner  as  a  summons,  ujDon  the  person  or  per- 
sons named  therein,  if  they  can  be  found  within  the  said 
county  of  Gloucester,  or  are  residents  therein;  or  if  they 
cannot  be  found  or  are  not  resident  in  said  county,  by  fixing 
a  copy  of  the  writ  on  the  door  of  the  building  against  which 
the  claim  is  filed,  and  upon  the  return  of  sendee  and  failure 
of  the  defendant  or  defendants  to  appear,  the  court  shall 
render  judgment,  as  in  other  cases  upon  writs  of  scire  fa- 
cias ;  but  if  they  or  either  of  them  appear,  such  person  or 
persons  may  plead  and  make  defense,  and  the  like  proceed- 
ings be  had  as  in  personal  actions  for  the  recovery  of  debts : 
proTided,  that  no  judgnnent  rendered  on  any  such  writ  of 
scire  facias,  shall  warrant  the  issuing  of  an  execution  except 
against  the  building  or  buildings  upon  which  the  lien  existed 
as  aforesaid. 

Sec.  3.  And  be  it  enacted.  That  every  claim  to  be  filed  as 
aforesaid,  shall  particularly  designate  the  building  for  which 
the  work  therein  to  be  mentioned  was  done,  or  the  materials 
therein  to  be  mentioned  were  found  and  provided. 


HiSTOKicAL  Summary.  7 

Sec.  4.  And  be  it  enact ed_,  That  whenever,  within  the 
tract  of  land  above  described,  any  building  shall  he  erected 
by  contract,  then  and  in  such  case,  payment  according  to  such 
contract,  by  the  owner  or  owners  of  the  building  to  the  con- 
tractor or  contractors,  shall  fully  and  entirely  discharge 
such  building  from  all  lien  for  work  done,  and  materials 
furnished :  promded,  the  said  contract  shall  be  in  writing 
and  filed  as  aforesaid  forthwith  after  the  same  shall  have 
been  made  and  executed." 

The  noticeable  features  of  this  first  statute  are: 

1.  It  was  passed  at  the  request  of  the  land  owner. 

2.  It  gave  no  lien  on  the  lands,  but  made  the  buildings  only 
liable  thereto. 

3.  It  gave  the  lien  to  i)ersons  between  whom  and  the  owner 
there  might  be  no  privity. 

4.  It  enabled  the  owner,  however,  by  filing  his  contract,  and 
paying  according  to  its  terms,  to  free  the  building  from  the 
lien  of  any  one  to  whom  he  was  not  himself  debtor  (§4.) 

By  the  act  of  I'ebruary  19,  1830  (p.  103),  the  act  of  1820  was 
extended  to  the  territorial  limits  of  the  city  of  Camden.  It  be- 
came known  thereafter  as  the  "Camden  Lien  Law."  This  act 
of  1830,  in  §2,  repealed  the  fourth  section  of  the  act  of  1820  (the 
section  which  permitted  the  owner  to  file  his  contract,  etc.).  The 
act  of  1830  contained  no  other  provisions  of  consequence. 

By  the  act  of  March  7,  1844  (p.  177),  the  second  section  of 
the  act  of  1830  (p.  103)  was  repealed,  and  the  fourth  section  of 
the  act  of  1820  was  thus  revived.  The  act  of  1844  contained  no 
other  provisions  of  present  moment. 

By  the  act  of  1846,  p.  4;  the  act  of  1846,  p.  171;  and  the  act 
of  1847,  p.  56;  the  act  of  1820  was  amended  in  particulars  of  no 
present  moment.  It  was  never,  by  any  act  extended  in  its  appli- 
cation beyond  the  territory  of  the  city  of  Camden. 

By  the  act  of  1852,  p.  31,  §  2  (February  12),  the  act  of  1820, 
and  all  its  supplements,  were  repealed,  viz. : 

1820  p.  124.     Approved  February  25. 

1830,  p.  103.     Approved  February  19. 

1844,  p.  177.     Approved  March  7. 

1846,  p.  4.     Approved  January  29. 

1846,  p.   171.     Approved  April  17. 

1847,  p.  56.     Approved  February  4. 

While  the  Camden  lien  law  was  thus  running  its  course, 
another  series  of  acts  also  came  into  existence.  The  first  of 
these  was  the  act  of  March  3,  1835  (1835,  p.  148).  That  act 
read  as  follows: 


8  Mechanics  Lien  Law. 

An  Act  securing  to  mechanios,  and  others,  payment  for 
their  labor  and  materials  in  erecting  any  house,  or  other  build- 
ing, within  the  limits  therein  mentioned. 

"Sec.  1.  Be  it  enacted  hy  the  Council  and  General 
Assembly  of  this  state,  and  it  is  hereby  enacted  by  the 
OAithority  of  the  same.  That  all  and  every  dwelling-house  or 
other  building,  hereafter  constructed  and  erected,  within  the 
limits  of  the  township  of  Trenton,  in  the  county  of  Himter- 
don,  and  Nottingham,  in  the  county  of  Burlington,  in  this 
state,  shall  be  subject  to  the  payment  of  the  debts  contracted 
for,  or  by  reason  of  any  work  done,  or  materials  foimd  and 
provided  by  any  brickmaker,  bricklayer,  stone  cutter,  mason, 
lime-merchant,  carpenter,  painter  and  glazier,  iron-monger, 
blacksmith,  plasterer,  and  lumber-merchant,  or  any  other 
person  or  persons  employed,  or  furnishing  materials  for,  or 
in  the  erection  and  constructing  such  house  or  other  build- 
ing :  but  if  such  house  or  other  building  should  not  sell  for  a 
sum  of  money  sufficient  to  pay  all  the  demands,  for  work  and 
materials,  over  and  above  any  prior  claim  or  mortgage  or 
judgment  against  any  land  owner,  on  the  land  on  which 
said  building  or  buildings  may  be  erected,  and  prior  to  the 
erection  of  said  building,  or  buildings,  then,  and  in  such 
case,  the  same  shall  be  averaged,  and  each  of  the  creditors 
paid  a  sura  proportioned  to  their  several  demands;  provided 
always  that  no  such  debt  for  work  and  materials  shall 
remain  a  lien  on  the  said  houses  or  other  buildings  longer 
than  two  years  from  the  commencement  of  the  building 
thereof;  unless  the  claim  be  filed  within  six  months  after 
performing  the  work  or  furnishing  the  materials,  in  the 
office  of  the  clerk  of  the  inferior  court  of  common  pleas 
of  the  county  where  such  building  may  be  erected,  as  the 
case  may  be,  and  an  action/  for  the  recovery  of  the  same  be 
instituted  within  one  year  after  such  work  done,  or  materials 
found ;  and  all  claims  for  work  done,  and  materials  fur- 
nished, shall  be  filed  within  six  months  from  the  time  that 
the  materials  were  furnished  and  the  work  done,  or  be  for- 
ever barred  and  excluded  from  the  provisions  and  benefits 
of  this  act;  and  'provided  also,  that  each  and  every  person 
having  received  satisfaction  for  his  or  their  debt,  for  which 
a  claim  shall  be  filed  as  aforesaid,  or  action  brought  as  afore- 
said, shall  thereupon  execute  a  release  and  discharge  for  the 
same,  expressing  therein  the  date  of  the  entry  of  said  lien 


Historical  Summary.  9 

in  the  clerk's  offic€i,  of  the  county  where  such  building  is 
erected,  and  the  amount  thereof,  and  acknowledge  the  same 
before  a  judge  of  the  inferior  court  of  common  pleas  of  the 
county  where  the  same  may  be  filed,  which  shall  be  suifi- 
oient  authority  for  the  clerk  to  enter  satisfaction  to  the  same, 
upon  payment  of  costs. 

Sec.  2.  And  h&  it  enacted,  That  in  all  cases  of  lien  cre- 
ated by  this  act,  the  person  having  a  claim  filed  agreeably 
to  the  provisions  hereof,  may,  at  his  election,  proceed  to 
recover  it  by  personal  action,  according  to  the  nature  of  the 
demand,  against  the  debtor,  his  executors  or  administrators, 
or  by  scire  facias  against  the  debtor  and  owner  or  owners 
of  the  building,  or  their  executors  or  administrators ;  and 
where  the  proceeding  is  by  scire  facias  the  writ  shall  be 
served  in  like  manner  as  a  summons,  upon  the  person  or 
persons  named  therein,  if  they  can  be  found  within  any  of 
the  said  counties  where  such  building  is  erected,  or  are  resi- 
dent therein ;  or  if  they  cannot  be  found,  or  are  not  resident 
in  either  of  said  counties,  by  aflixing  a  copy  of  the  wrii 
on  the  door  of  the  building  against  which  the  claim  is  filed, 
and  upon  the  return  of  service  and  failure  of  the  defendant 
or  defendants  to  appear,  the  court  shall  render  judgment,  as 
in  other  cases  upon  writs  of  scire  facias ;  but  if  they,  or 
either  of  them  appear,  such  person  or  persons  may  plead  and 
make  defence,  and  the  like  proceedings  be  had  as  in  jjer- 
sonal  actions  for  the  recovery  of  debts ;  and  upon  judgment 
being  rendered  thereupon,  execution  shall  issue  agmnst  the 
huUding  or  hmldmgs  and  land  upon  which  the  same  is 
erected,  subject  to  all  prior  claims  as  aforesaid. 

Sec.  3.  And  he  it  enacted,  That  whenever  any  master  or 
workman  shall  refuse  to  pay  to  any  journeyman  or  laborer, 
employed  by  him,  in  the  erection  or  construting  any  house 
or  other  building,  his  wages,  it  shall  be  the  duty  of  such 
journeyman  or  laborer,  to  give  notice,  in  waiting,  to  the 
owner  or  owners  of  such  house  or  other  building,  of  such 
refusal,  and  the  amount  due  him  or  them,  and  so  demanded, 
and  the  said  owner  or  owners  shall  thereupon  be  authorized 
to  retain  the  amount  so  due  and  claimed,  by  any  such  jour- 
neyman and  laborer,  out  of  the  amount  due  by  him  or  them 
to  such  master  workman,  and  give  notice  to  such  master 
workman  of  such  notice  and  demand,  and  if  not  liquidated 
and  paid  by  such  master  workman,  such  owner  or  owners, 


10  Mechanics  Lien  Law, 

on  being  satisfied  of  the  correctness  of  such  demand,  shall 
pay  the ^  same;  and  the  receipt  of  such  journeyman  and 
laborer  for  the  same,  shall  be  a  sufficient  offset  in  the  settle- 
ment of  the  accoimts  betu-een  such  owner  or  owners  of  any 
house  or  otlier  building,  and  such  maste:^  workman. 

Sec.  4.  And  be  it  enacted,  That  every  claim  to  be  filed 
as  aforesaid,  shall  particularly  designate  the  building  for 
which  the  work  therein  to  be  mentioned,  was  done,  or  the 
materials,  therein  to  be  mentioned  were  found ;  and  provided 
always,  that  the  provisions  of  this  law  shall  not  extend  to  or 
include  repairs  done  by  any  tenant  on  property  rented  by 
him,  without  the  written  consent  of  the  owner  thereof,  that 
the  same  may  be  brought  within  the  provisions  of  this  act. 

Sec.  5.  And  be  it  enacted,  That  whenever  within  any  of 
the  said  townships,  before  named,  any  building  shall  be 
erected  by  contract,  then,  and  in  such  case,  payment  accord- 
ing to  such  contract,  by  the  owner  or  owners  of  the  building, 
to  the  contractor  or  contractors,  shall  fully  and  entirely 
discliarge  such  building  from  all  lien,  for  work  done  and 
materials  furnished ;  provided,  the  said  contract  be  in  writ- 
ing, and  filed  as  aforesaid,  within  sixty  days  after  the  same 
shall  have  been  made  and  executed." 

The  noticeable  features  of  this  act  are: 

1.  Its  territorial  limit  was  the  township  of  Trenton. 

2.  It  gave  the  lien  against  the  land  as  well  as  against  the 
building. 

3.  Like  the  Camden  act,  it  gave  a  lien  to  persons  not  in  privity 
with  the  owner;  but  enabled  the  owner  to  escape  such  liens  by 
filing  his  contract,  etc. 

4.  Its  most  remarkable  feature  is  its  third  section,  which  gives 
a  claimant  journeyman  or  laborer  a  right  of  recourse  against  the 
contract  price  in  the  owners'  hands  by  stop  notice. 

This  act  of  1835  (p.  148)  was  followed  by  a  number  of  acts 
extending  its  territorial  scope,  but  not  in  any  other  way  modify- 
ing its  provisions.  These  acts  and  the  extension  effected  by  each 
are  as  follows: 

1836,  p.  280.     Approved  March  7,  Hunterdon  county. 

1837,  p.  430.  Approved  March  10,  the  county  of  Somerset  and 
the  township  of  West  Windsor,  in  Middlesex  county,  and  the 
township  of  Paterson  and  Manchester,  in  Passaic  county, 

1839,  p.  170.  Approved  March  8,  the  township  of  Chesterfield, 
in  Burlington  county. 

1842,  p.  24,  February  7,  the  corporation  of  Jersey  City  and 
the  townships  of  Van  Vorst  and  Bergen,  in  Hudson  county. 

1843,  p.  75,  February  20,  the  City  of  Burlington. 

1844,  p.  178,  March  13,  the  counties  of  Monmouth,  Salem  and 


Historical.  Summary.  11 

Cumberland,   and   the    township    of   Acquackanonck,    in   Passaic 
county. 

1844,  p.  221,  March  7,  the  town  of  Mount  Holly,  and  one  mile 
from  the  Court  House  therein,  also  the  township  of  Northampton, 
in  Burlington  county. 

By  the  act  of  April  3,  1845  (p.  215),  it  was  enacted  as 
follows : 

"A  Further  Supplement  to  the  act  entitled,  "An  act 
securing  to  mechanics  and  others  payment  for  their  labour 
and  materials,  in  erecting  any  house  or  other  building  within 
the  limits  therein  mentioned,"  passed  March  third,  eighteen 
hundred  and  thirty-five,  and  to  the  several  supplements  to 
said  act. 

Be  it  enacted  by  the  Setiaie  and  General  Assembly  of 
the  State  of  New  Jersey,  as  follows : 

Sec.  1.  The  lien  given  by  the  act  to  which  this  is  a  sup- 
plement, and  by  the  several  supplements  to  said  act,  is 
hereby  declared  to  extend  to  all  mills  and  manufactories 
of  every  description,  for  all  debts  contracted  by  the  owner 
or  owners  thereof,  or  by  any  other  person,  with  his,  her,  or 
their  consent  in  writing,  for  machinery  or  fixtures  funiished 
for  said  mill  or  manufactory,  or  w^ork  done  and  materials 
furnished  for  or  about  the  erection,  construction,  or  repairing 
machinery  in  the  same. 

Sec.  2.  This  act  shall  be  limited  in  its  operation  to  the 
county  of  Mercer." 

All  of  the  foregoing  acts  were  embodied  in  the  Revision  of 
April  15,  1846;   R.  S.,  p.  732,  §§  1-7,  and 

By  the  act  of  February  22,  1849  (p.  86),  the  provisions  of  that 
revision  were  extended  to  the  lower  township  in  Cape  May  county; 
By  the  act  of  February  15,  1850  (p.  71),  they  were  extended  to 
the  county  of  Morris,  and  the  township  of  East  Windsor  in  Mer- 
cer county  and  the  townships  of  Mansfield  and  Chester,  in  Bur- 
lington county;    and 

By  the  act  of  March  7,  1851  (p.  187),  they  were  extended  to 
all  the  counties  of  the  state,  and  the  time  for  filing  claim  was 
lengthened  to  a  year. 

All  of  these  acts  were  repealed  by  the  act  of  1853,  p.  437,  §  17, 
viz.: 

Approved  March  3; 
Approved  March  7; 
Approved  March  10; 
Approved  March  8; 
Approved  February  7; 
Approved  February  20; 


1835, 

p. 

148. 

1836. 

P- 

280. 

1837, 

P- 

430. 

1839, 

p. 

170. 

1842, 

P- 

24. 

1843, 

P- 

75. 

12  Mechanics  Lien  Law. 

1844,  p.  178.  Approved  March  13; 

1844,  p.  221.    Approved  March  7; 

1845,  p.  215.    Approved  April  3; 

Rev.  April  15,  1846;   R.  S.,  p.  792,  §§  1-7; 
1849,  p.    86.    Approved  February  22; 
1860,  p.  71.    Approved  February  15; 
1851,  p.  187.    Approved  March  7. 

Besides  the  Camden  act  of  1820  and  the  Trenton  act  of 
1835,  there  was  a  third  act,  which  may  be  called  the  Newark 
act,  passed  February  16,  1847  (p.  57),  which  was  as 
follows : 

"An  act  for  the  better  security  of  mechanics  and  others 
erecting  buildings,  and  furnishing  materials  therefor. 

"1.  Be  it  enacted  by  the  S&nate  a/)id  General  Assernihly 
of  the  State  of  New  Jersey,  That  any  person  who  shall  here- 
after, by  virtue  of  any  contract  with  the  owner  thereof,  or  his 
agent,  or  any  person  who,  in  pursuance  of  an  agreement 
with  any  such  contractor  shall,  in  conformity  with  the  terms 
of  the  contract  with  such  owner  or  agent,  perform  any 
labour,  or  furnish  materials  in  building,  altering,  or  repair- 
ing any  house  or  other  building,  or  appurtenances  to  any 
house  or  other  building,  in  the  city  of  ISTewark,  in  the  town- 
ships of  Elizabeth  and  Rahway,  in  the  county  of  Essex,  and 
the  townships  of  Woodtjndge  and  South  Brunswick,  in  the 
county  of  M|iddlesex,  shall  have  a  lien  for  the  value  of  such 
labour  and  materials  upon  such  house  or  building  and  appur- 
tenances, and  upon  the  lot  of  land  on  which  the  same  stands, 
to  the  extent  of  the  right,  title,  and  interest,  at  the  time 
existing,  of  such  owner,  in  the  manner  and  to  the  extent 
hereinafter  mentioned ;  but  the  aggregate  of  all  the  liens 
authorized  by  this  act  to  be  created,  for  the  labour  performed 
and  materials  furnished  in  building,  altering  or  repairing 
any  house  or  other  building  or  appurtenances,  shall  not 
exceed  the  price  stipulated  in  the  contract  with  such  owner, 
or  his  agent,  to  be  paid  therefor;  and  such  owner  shall  not 
be  obliged  to  pay  for  or  on  account  of  such  house,  building, 
or  appurtenances,  any  greater  sum  in  amount,  or  at  a  dif- 
ferent time,  than  the  price  so  stipulated  and  agreed  to  be  paid 
therefor,  in  and  by  such  contract ;  and  if  the  aggregate  of 
liens  shall  exceed  such  sum  or  amount,  the  same  shall  be 
applied  to  the  proportion  of  the  amount  of  the  several  liens. 

2.     And  he  it  enacted,  That  the  person  performing  such 


Historical,  Summary.  13 

labour  or  furnishing  such  materials  shall  cause  to  be  drawn 
up  specifications  of  the  work  by  him  contracted  to  be  per- 
formed, or  materials  to  be  furnished,  and  stating  the  price 
or  prices  agreed  to  be  paid  therefor,  and  shall  file  them,  or  if 
there  be  a  contract,  a  true  copy  thereof,  if  the  same  be  in 
writing,  in  the  office  of  the  clerk  of  the  county  in  which  the 
lien  is  created,  and  serve  a  notice  thereof,  personally,  on  such 
owner,  or  his  said  agent,  within  fifteen  days  after  the  mak- 
ing of  such  contract,  or  after  commencing  such  labour  or  the 
furnishing  said  materials ;  the  said  clerks  shall  provide  and 
keep  a  book  which  shall  be  called  ''The  Mechanics'  and 
Labourers'  Lien  Book,"  in  which  they  shall  enter,  alphabetic- 
ally, the  names  of  the  owners,  and,  opposite  to  them,  the 
names  of  contractors  or  labourers,  or  other  person  claiming 
a  lien,  and  the  lot  and  street  on  which  such  work  is  to  be 
done,  or  materials  furnished,  at  the  time  of  filing  such  spe- 
cification or  a  copy  of  such  contract ;  and  if  the  said  specifi- 
cation or  copy  of  contract  shall  not  be  filed,  and  notice  sensed 
as  above  provided,  the  said  lien,  and  all  claim  thereby,  shall 
be  forever  barred  and  excluded  from  the  benefits  of  this  act ; 
the  said  clerks  shall  receive  for  their  services  required  by  this 
section,  the  sum  of  eighteen  cents. 

"3.  And  he  it  enacted.  That  the  lien,  so  created  by  this 
act,  shall  take  effect  from  such  filing  and  such  service  of 
the  said  notice,  and  shall  continue  in  full  force  for  the 
space  of  six  months  after  the  completion  of  said  building, 
unless  discharged,  as  hereinafter  provided;  and  such  lien 
may  be  discharged  on  such  docket  at  any  time  by  said 
clerk,  on  the  production  to,  and  filing  with  him  of  a  cer- 
tificate, signed  by  the  contractor  or  laborer,  or  other  person 
claiming  such  lien,  that  the  claim  for  which  such  lien  was 
created  is  satisfied  and  discharged ;  w^hich  certificate  shall  be 
acknowledged  or  proved  in  the  same  manner  as  deeds  are  re- 
quired to  be  acknowledged  or  proved,  to  entitle  the  same  to  be 
recorded,  and  upon  paying  the  clerk  the  same  fees  as  for  fil- 
ing other  papers  and  entering  satisfaction  of  judgments. 

"4:.  And  he  it  enacted,  That  any  contractor  or  labourer,  or 
any  person  furnishing  materials,  in  pursuance  of  any  con- 
tract made  by  such  contractor  with  such  owner,  or  his  agent 
therefor,  or  any  person  in  whose  favour  a  lien  has  been  cre- 
ated by  this  act,  after  such  labour  has  been  performed,  or 
materials  furnished,  and  payment  for  the  same  has  became 


14  Mechanics  Lien  Law. 

due,  and  the  said  owner,  after  demand  made,  shall  refuse 
to  pay  the  same,  may  enforce  or  bring  such  lien  to  a  close, 
by  action  or  suit  at  law,  in  any  court  of  competent  jurisdic- 
tion in  the  county  in  which  the  lien  is  created ;  and  if  the 
sum  claimed  shall  be  one  hundred  dollars,  or  under,  the 
action  shall  be  in  the  court  for  the  trial  of  small  causes, 
before  any  justice  of  the  peace  in  said  city,  or  in  the  town- 
ships, respectively,  in  which  the  lien  is  created ;  and  the 
suits  shall  be  conducted,  and  like  proceeding  had,  in  all 
respects,  as  in  other  cases;  and  if  the  action  shall  be  for  a 
sum  exceeding  one  hundred  dollars,  it  may  be  prosecuted, 
as  in  other  cases,  to  judgment  and  execution,  and  a  sale 
made  of  the  house  or  building  and  appurtenances,  and  lot 
of  land,  on  which  the  lien  was  created,  as  in  other  cases  of 
sale  of  land  by  virtue  of  judgment  and  execution;  and  if 
judgment  shall  be  recovered  in  the  court  for  the  trial  of 
small  causes,  and  no  appeal  be  demanded,  or  other  proceed- 
ings had  upon  said  judgment,  the  party  recovering  may  file 
a  transcript  of  said  judgment,  under  the  hand  and  seal  of 
the  said  justice,  in  the  office  of  the  clerk  of  said  county,  with 
an  affidavit  of  the  claimant,  that  the  said  judgment  is  unsat- 
isfied; and  thereupon,  the  said  clerk  shall  docket  and  re- 
cord the  said  judgment,  as  in  other  cases,  and  execution  may 
issue  thereon ;  and  the  said  judgment  and  execution  shall 
have  the  same  force  and  effect  as  in  other  cases,  and  the  said 
house  or  other  building,  and  lot  of  land,  upon  which  the 
same  is  a  lien,  may  be  sold,  as  is  provided  for  the  sale  of 
land  upon  judgment  and  execution ;  but  no  priority  shall 
be  given  to  such  judgment  and  execution  over  other  liens,  but 
the  said  house  or  building  and  appurtenances,  and  lot  of 
land,  or  the  avails  thereof,  over  and  above  all  prior  encum- 
brances, if  any,  shall  be  for  the  equal  benefit  of  all  persons 
who  have  obtained  a  lien,  and  have  a  just  and  legal  claim 
thereon  by  virtue  of  this  act,  in  the  proportions  mentioned 
in  the  first  section  thereof ;  but  nothing  in  this  act  contained 
shall  authorize  the  claimant  to  recover  or  receive  any  greater 
sum  or  amount  than  he  is  justly  and  by  law  entitled  to,  and 
the  like  costs  and  fees,  as  near  as  may  be,  shall  be  recovered, 
as  in  other  cases,  in  the  said  several  courts. 

5.  And  be  it  enacted.  That  if  any  dispute  shall  arise  be- 
tween the  parties  in  whose  favor  a  lien  is  created  by  this 
act,  as  to  the  amount  which  shall  be  due  to  said  claimants, 


Historical  Summary.  15 

or  either  of  them,  the  said  parties  shall  take  measures,  within 
fifteen  days  after  the  lien  shall  take  effect,  or  the  claim  shall 
be  due,  to  settle  the  same  by  suit  at  law  or  otherwise,  and 
bring  the  same  to  a  close  without  delay,  or  be  forever  debarred 
of  the  benefits  of  said  lien;    and  the  owner  or  owners  of 
said  house  or  other  building,  and  lot  of  land,  upon  which  said 
lien  rests,  may  be  relieved  therefrom,  by  paying  the  amount 
of    money    which,    by    contract,    he    or    tliey    are     legally 
bound  to  pay,  making  a  rebate  of  interest  for  the  time  un- 
expired, if  by  the  contract  the  same  should  not  be  due,  to 
the  clerk  of  the  county  in  which  the  lien  is  created,  who  shall 
receive  and  retain  the  same  until  the  rights  of  the  claimants 
shall  be  finally  settled;    and  upon  satisfactory  evidence  of 
such  settlement,  the  said  clerk  shall  pay  to  the  claimant  or 
claimants  the  amount  which  he  or  they  shall  be  entitled  to 
receive,  in  whole  or  part,  as  provided  in  the  first  section  of 
this  act,  deducting  from  said  deposit  one  per  centum  for  his 
services  for  receiving  and  paying  the  same,  and  the  surplus,  if 
any,  shall  be  paid  to  the  depositor;    and  the  certificate  of 
such  deposit  shall  be  a  bar  to  all  suits  or  actions  against  thg 
said  owner  or  depositor  by  the  claimants  aforesaid  ;   and  upon 
such  payment  to  the  said  clerk,  as  aforesaid,  the  said  lien 
shall  cease  and  determine,  and  the  premises  subject  there- 
unto   forever   discharged   therefrom,    and    satisfaction   shall 
be  entered  on  the  docket  aforesaid. 

"6.  Aiid  he  it  enacted.  That  any  person  performing  such 
labour,  or  furnishing  such  materials  in  pursuance  of  any 
agreement  made  by  him  with  the  original  contractor  with  such 
owners,  or  his  said  agent,  who  shall  have  done  the  acts  pre- 
scribed by  the  second  section  of  this  act,  to  create  a  lien 
therefor,  shall  have  a  lien  for  only  such  labour  as  shall  be 
performed,  and  for  only  such  materials  as  shall  be  furnished 
subsequently  thereto." 

This  act  was  extended  to  embrace  the  township  of  Belleville  by 
the  act  of  March  4,  1847  (p.  165) ;  and  both  acts  were  by  implica- 
tion repealed  by  1853,  p.  437,  §  17. 

After  the  course  of  legislation  which  we  have  thus  above 
briefly  traced,  the  legislature,  by  the  act  of  March  11,  1853 
(p.  437),  undertook  to  enact  a  comprehensive  measure,  ap- 
plicable to  the  whole  state,  and  which  read  as  follows: 


16  Mechanics  Lien  Law. 

"An  Act  to  secure  to  mechanics  and  others,  payment  for 
tlieir  labor  and  materials  in  erecting  any  building. 

1.  Be  it  enacted  ly  the  Senate  and  General  Assembly 
of  the  State  of  New  Jersey,  That  every  building  hereafter 
erected  or  built  within  this  state,  shall  be.  liable  for  the 
payment  of  any  debt;,  contracted  and  owing  to  any  person 
for  labor  performed,  or  materials  furnished,  for  the  erectior 
and  construction  thereof,  which  debt  shall  be  a  lien  on  sucL 
building,  and  on  the  land  whereon  it  stands,  including  the  lot 
or  curtilage  whereon  the  same  is  erected. 

"2.  And  he  it  enacted,  That  when  any  building  shall  be 
erected  in  whole  or  in  part  by  contract  in  writing,  such 
building,  and  the  land  whereon  it  stands,  shall  be  liable  to 
the  contractor  alone,  for  work  done  or  materials  furnished 
in  pursuance  of  such  contract;  provided,  such  contract 
or  a  duplicate  thereof,  be  filed  in  the  office  of  the  clerk  of 
the  county  in  which  such  building  is  situate,  before  such 
work  done  or  materials  furnished ;  and  no  building  or 
land  shall  be  liable  for  work  done  by  any  person,  not  em- 
ployed by  the  owner  or  his  agent,  on  his  account, 

"3.  And  he  it  enacted,  That  whenever  any  master  work- 
man  or  contractor  shall,  upon  demand,  refuse  to  pay  any  per- 
son who  may  have  furnished  materials  used  in  the  erectiom 
of  any  such  house  or  other  building,  or  any  journeyman  or 
laborer  employed  by  him  in  the  erecting  or  constructing 
any  building,  the  wages  due  to  him,  it  shall  be  the  duty  of 
such  journeyman  or  laborer  to  give  notice  in  writing  to  the 
owner  or  owners  of  such  building  of  such  refusal,  and  of 
the  amount  due  to  him  or  them  and  so  demanded,  and  the 
owner  or  owners  of  such  building,  shall  thereupon  be  author- 
ized to  retain  the  amount  so  due  and  claimed  by  any  such 
journeyman  or  laborer  out  of  the  amount  owing  by  him  or 
them  to  such  master  workman  or  contractor,  giving  him 
written  notice  of  such  notice  and  demand ;  and  if  the  same 
be  not  paid  or  settled  by  said  master  workman  or  contractor, 
such  owner  or  owners,  on  being  satisfied  of  the  correctness 
of  such  demand,  shall  pay  the  same,  and  the  receipt  of  such 
journeyman  or  laborer  for  the  same,  shall  eaititle  such  owner 
or  owners  to  an  allowance  therefor,  in  the  settlement  of 
accounts  between  him  and  such  master  workman  or  con- 
tractor as  so  much  paid  on  account. 

"4.  And  he  it  enacted.  That  if  any  building  he  erected 


Historical  Summaky.  17 

by  a  tenant  or  other  person  than  tte  owner  of  the  land,  then 
only  the  building  and  the  estate  of  such  tenant,  or  other 
person  so  erecting  such  building,  shall  be  subject  to  the  lien 
created  by  this  act  and  the  other  provisions  thereof,  unless 
such  buidling  be  erected  by  the  consent  of  the  owner  of  such 
lands  in  writing,  which  writing  may  be  acknowledged 
or  proved,  and  recorded  as  deeds  are,  and  when  so  acknowl- 
edged or  proved  and  recorded,  the  record  thereof  and  copies 
of  the  same  duly  certified  shall  be  evidence  in  like  mai.ner. 

"5.  And  be  it  enacted.  That  any  addition  erected  to  a 
former  building,  and  any  fixed  machinery,  or  gearing,  or  ^ 

other  fixtures  for  manufacturing  purposes,  shall  be  considered  >f 

a  building  for  the  purposes  of  this  act ;  but  no  building  shall  ^ 

be  subject  to  the  provisions  of  this  act,  for  any  debt  con-  y. 

tracted  for  repairs  done  thereto  or  alterations  made  therein.  \j 

"6.  And  be  it  enacted.  That  every  person  intending  to 
claim  a  lien  upon  any  building  or  lands  by  virtue  of  this  act, 
shall  within  one  year  after  the  labor  is  performed,  or  the 
materials  furnished,  for  which  such  lien  is  claimed,  file 
his  claim  in  the  office  of  the  clerk  of  the  county  where  such 
building  is  situate,  which  claim  shall  contain  these  matters: 

"I.  A  description  of  the  building,  and  of  the  lot  or  cur- 
tilage upon  which  the  lien  is  claimed,  and  of  its  situation 
sufficient  to  identify  the  same. 

"II.  The  name  of  the  owner  or  owners  of  the  land  or  of 
the  estate  therein  on  which  the  Hen  is  claimed, 

"III.  The  name  of  the  person  who  contracted  the  debt,  or 
for  whom,  or  at  whose  request  the  labor  was  performed,  or 
the  materials  furnished  for  which  such  lien  is  claimed,  who 
shall  be  deemed  the  builder. 

"IV.  A  bill  of  particulars  exhibiting  the  amount  and  kind 
of  labor  }}erformed,  and  of  materials  furnished,  and  the 
prices  at  which,  and  times  when  the  same  was  performed  and 
furnished,  and  giving  credit  for  all  payments  made  there- 
upon, and  deductions  that  ought  to  be  made  therefrom,  and 
exhibiting  the  balance  justly  due  to  such  claimant;  which 
statement  when  the  work  or  materials  or  both,  are  furnished 
by  contract,  need  not  state  the  particulars  of  such  labor  or 
materials,  further  than  by  stating  generally  that  certain  work 
therein  stated  was  done  by  contract  at  a  price  mentioned ; 
and  such  bill  of  particulars  and  statements  shall  be  verified 
by  the  oath  of  the  claimant,  or  his  agent  in  said  matter, 
9 


18  Mechanics  Lien  Law. 

setting  forth  that  the  same  is  for  labor  done  or  materials  fur- 
nished in  the  erection  of  the  building  in  such  claim  described 
at  the  times  therein  specified,  and  that  the  amount  as  claimed 
therein  is  justly  due;  and  when  such  claim  shall  not  be 
filed  in  the  manner  or  within  the  time  aforesaid,  or  if  the 
bill  of  particulars  shall  contain  any  wilful  or  fraudulent 
misstatement  of  the  matters  above  directed  to  be  inserted 
therein,  the  building  or  lands  shall  be  free  from  all  lien 
for  the  matters  in  such  claim. 

"7.  And  be  it  enacted.  That  every  county  clerk  sKall,  at 
the  expense  of  the  county,  provide  a  suitable  well  bound  book, 
to  be  called  the  lien  docket,  in  which  he  shall  enter,  upon  the 
filing  of  any  lien  claim ;  first,  the  name  of  the  owner  of 
the  building  and  land  upon  which  the  same  is  claimed; 
second,  the  name  of  the  builder  or  person  who  contracted  the 
debt ;  third,  the  description  of  said  buildings  and  lands  ;  and 
fourth,  the  amount  claimed,  and  by  whom  claimed;  and 
said  clerk  shall  make  a  proper  index  of  the  same,  in  the 
name  of  the  owner  of  the  land  and  building;  and  such 
clerk  shall  be  entitled  to  twelve  cents  for  filing  each  claim 
or  contract,  and  at  the  rate  of  eight  cents  per  folio  for  such 
entry  made  in  the  lien  docket,  and  six  cents  for  every  search 
in  the  office  for  such  lien,  claim  or  contract. 

"8.  And  he  it  enacted.  That  when  a  claim  is  filed  agree- 
ably to  the  provisions  of  this  act,  upon  any  lien  created 
thereby,  the  same  may  be  enforced  by  suit,  in  the  circuit 
court  of  the  county  where  such  building  is  situated,  which 
suit  shall  be  commenced  bv  summons  against  the  builder 
and  the  owner  of  the  land  and  building,  in  the  following  or 
like  form: 

"Summon  A.  B.,  builder,  and  C.  D.,  owner,  (or  if  the 
owner  contracted  the  debt)  A.  B.,  builder  and  owner,  to 
appear  before  the  circuit  court,  in  and  for  the  county  of 
,  at  ,  in  said  county,  on  the 

day  of  ,   that  the   said   A.    B., 

(the  builder)  may  answer  unto  E.  F.,  (claimant)  of  a  plea 
of  (as  in  other  cases  of  assumpsit,  debt,  or  whatever  the 
proper  form  of  action  for  the  debt  may  be)  for  which  said 
E.  F.  claims  a  building  lien  on  a  certain  building  and  lands 
of  said  C.  D.  (describing  the  building  and  lands  as  in  the 
claim  on  file). 

"And  said  summons  shall  be  directed,  tested  and  made 


Historical  Summary.  19 

returnable,  and  may  be  served  and  returned  in  the  same 
manner  as  other  writs  or  summons ;  and  such  summons  may 
be  served  upon  the  defendants,  or  either  of  them,  in  any 
county  of  this  state,  by  the  sheriff  thereof,  and  for  this  pur- 
pose the  same  or  a  duplicate  thereof,  may  be  issued  to  such 
sheriff;  and  if  any  defendant  cannot  be  found  in  this  state, 
it  may  be  served  upon  him  by  affixing  a  copy  thereof  upon 
such  building,  and  also  by  sei-ving  a  copy  on  such  defendant 
personally,  or  by  leaving  it  at  his  residence  ten  days  before  its 
return,  which  shall  be  deemed  actual  service,  or  in  case  such 
defendant  resides  out  of  this  state,  by  affixing  a  copy  on  such 
building  and  sending  a  copy  by  mail,  directed  to  him  at  the 
post  office  nearest  his  residence,  or  in  case  his  residence  is 
not  known  to  the  plaintiff,  then  by  affixing  a  copy  to  such 
building,  and  by  inserting  it  for  four  weeks,  once  in  each 
week,  in  some  newspaper  of  this  state,  published  or  circulat- 
ing in  the  county  where  such  building  is  situate,  either  of 
which  shall  be  legal  service ;  and  when  an  affidavit  shall  be 
made  and  filed  of  the  facts,  authorizing  and  constituting 
any  such  service,  not  made  by  a  sheriff  or  officer,  the  suit  may 
proceed  against  the  party  so  served  as  if  such  summons  had 
been  returned  served  by  the  sheriff. 

"9.  And  b&  it  enacted,  That  the  declaration  in  such  case 
shall,  after  reciting  that  both  owner  and  builder  were  sum- 
moned and  how  served,  be  against  the  builder,  and  in  the 
same  form  as  in  other  cases  of  assumpsit,  covenant,  debt,  or 
as  the  case  may  be,  and  shall  conclude  with  an  averment  that 
said  debt  is,  by  virtue  of  the  provisions  of  this  act,  a  lien 
upon  such  building  and  lot,  describing  the  same  as  in  said 
claim;  and  to  said  declaration  a  schedule  may  be  annexed, 
and  the  practice,  pi^oceedings  and  pleadings  thereon,  shall 
be  conducted,  and  the  judgment  entered,  as  in  suits  in  said 
circuit  to  recover  money  due  on  contract ;  and  both  or  either 
of  said  defendants  may,  jointly  or  severally,  have  any 
defence  or  plea  to  the  same,  that  might  be  had  by  the  builder 
to  any  action  on  said  contract  without  this  act;  and  in  addi- 
tion thereto,  the  owner  may  plead  that  said  house  or  land 
are  not  liable  to  said  debt,  and  in  such  case  it  shall  be  neces- 
sary for  the  plaintiff,  to  entitle  him  to  judgment  against  the 
house  and  lands,  to  prove  tliat  the  provisions  of  this  act, 
requisite  to  constitute  such  lien,  have  been  complied  with ; 
and  in  case  a  verdict  be  rendered  or  judgment  given  against 


20  Mechanics  Lien  Law. 

the  builder  only,  judgment  shall  be  given  for  the  land  owner, 
with  costs  against  the  plaintiff;  and  in  ease  judgment  be 
given  for  the  plaintiff,  it  shall  be  entered  against  the  builder 
when  he  was  actually  served  with  the  summons  generally,  and 
with  costs  as  in  other  cases,  and  when  only  legal  service  of  the 
summons  has  been  made,  judgment  against  the  owner  and 
also  against  the  builder,  shall  be  specially  for  the  debt  and 
costs,  to  be  made  of  the  building  and  lands  in  the  declaration 
described ;  and  in  case  no  general  judgment  is  given  against 
the  builder,  such  proceedings  or  recovery  shall  be  no  bar  to 
any  suit  for  the  debt,  except  for  the  part  thereof  actually 
made  under  such  recovery. 

"10.  And  he  it  enacted.  That  where  judgment  is  entered 
generally  against  the  builder,  a  writ  or  writs  of  fieri  facias 
may  issue  thereon  as  in  other  cases;  and  when  judgment 
shall  be  against  the  building  and  lands,  a  special  writ  of 
fieri  facias  may  issue  to  make  the  amount  recovered  by  sale 
of  the  building  and  lands ;  and  when  both,  a  general  and  spe- 
cial judgment  shall  be  given,  both  writs  may  be  issued  either 
separately  or  combined  in  one  writ,  and  one  may  be  issued 
after  the  return  of  the  other  for  the  whole  or  residue  as  the 
case  may  require ;  and  such  judgments  may  be  docketed  in 
the  supreme  court  and  execution  had  thereon  as  other  judg- 
ments may  be. 

"11.  A7id  he  it  enacted.  That  under  such  special  fieri 
facias,  the  sheriff  or  other  officer  shall  advertise,  sell  and  con- 
vey said  building  and  lot,  in  the  same  manner  as  directed 
by  law  in  case  of  lands  levied  upon  for  debt ;  and  the  deed 
given  by  such  sheriff  or  officer,  shall  convey  to  the  purchaser 
said  building",  free  from  any  former  encumbrance  on  the 
lands,  and  shall  convey  the  estate  in  said  lands,  which  said 
OT\Tier  had  at  or  any  time  after  the  commencement  of  the 
building,  within  one  year  before  the  filing  such  claim  in  the 
clerk's  office,  subject  to  all  prior  encumbrances,  and  free  from 
all  encumbrances  or  estates  created  by  or  obtained  against 
such  owner  afterwards,  and  from  all  estates  and  encumbran- 
ced  created  by  deed  or  mortgage,  made  by  such  owner,  or  any 
claiming  under  him,  and  not  recorded  or  registered  in  the 
office  of  the  clerk  of  the  county  at  the  commencement  of  said 
building. 

"12.  And  be  it  enacted.  That  no  debt  shall  be  a  lien  by 
virtue  of  this  act,  unless  a  claim  is  filed  as  hereinbefore  pro- 


Historical  Summary.  21 

vided,  within  one  year  from  the  furnishing  the  materials  or 
performing  the  labor  for  which  such  debt  is  due,  and  such 
part  of  any  claim  filed  as  may  be  for  work  done  or  materi- 
als furnished  more  than  one  year  before  the  filing  of  the 
same,  shall  not  be  recovered  against  the  building  or  land  by 
virtue  of  this  act,  nor  shall  any  lien  be  enforced  by  virtue 
of  this  act,  unless  the  summons  in  the  suit  for  that 
purpose  shall  be  issued  within  one  year  from  the  date  of 
the  last  work  done  or  materials  furnished  in  such  claim ;  and 
the  time  of  issuing  such  summons  shall  be  endorsed  on  the 
claim  by  the  clerk,  upon  the  sealing  thereof ;  and  if  no  such 
entry  be  made  watliin  one  year  from  such  last  date,  such  lien 
shall  be  discharged ;  provided,  that  the  time  in  which  such 
lien  may  be  enforced  by  summons  may  be  extended  for  any 
further  period  not  exceeding  one  year,  by  a  written  agree- 
ment for  that  purpose,  signed  by  said  land  owner  and  said 
claimant,  and  annexed  to  said  claim  on  file  before  such  time 
herein  limited  therefor  shall  have  expired,  in  \vhich  case 
the  county  clerk  shall  enter  the  word  "extended"  on  the 
margin  of  the  lien  docket  opposite  such  claim;  and  any 
claimant,  upon  receiving  written  notice  from  the  owner  of 
the  land  or  buildings  requiring  him  to  commence  suit  on  such 
claim  within  thirty  days  from  the  receipt  of  such  notice,  shall 
only  enforce  such  lien  by  suit  to  be  commenced  within  said 
thirty  days. 

"13.  And  he  it  enacted.  That  such  land  and  building  may 
be  discharged  from  any  lien  created  by  this  act,  (1)  by  pay- 
ment and  a  receipt  therefor,  given  by  such  claimant,  which 
when  the  same  is  executed  in  presence  of,  and  is  attested  by 
any  officer  entitled  to  take  the  acknowledgment  of  the  execu- 
tion of  a  deed,  or  when  acknowledged  or  proved  before  such 
officer,  shall  be  filed  by  such  clerk,  and  the  words  "dis- 
charged by  receipt"  shall  be  entered  by  him  in  said  lien 
docket,  opposite  the  entry  of  said  lien,  (2)  or  by  paying 
to  said  county  clerk  the  amount  of  said  claim ;  which  amount 
said  clerk  shall  pay  over  to  said  claimant,  (3)  by  the  expira- 
tion of  the  time  limited  for  issuing  a  summons  on  such  lien 
claim,  without  any  summons  being  issued,  or  without  notice 
thereof  endorsed  on  said  claim;  (4)  by  filing  an  affidavit  that 
a  notice  from  the  owner  to  the  claimant,  requiring  such  claim- 
ant to  commence  suit  to  enforce  such  lien  in  thirty  clays  from 
the  service  of  such  notice :  and  the  lapse  of  thirty  days  after 


22  Mechanics  Lien  Law. 

such  service  without  such  suit  being  commenced,  or  without 
an  entry  of  the  time  of  issuing  such  summons  being  made  on 
such  claim. 

"14.  And  he  it  enacted,  That  all  lien  claims  for  erecting 
the  same  building  shall  be  concurrent  liens  upon  the  same 
and  the  land  whereon  the  same  is  erected,  and  shall  be  paid 
pro  rata  out  of  the  proceeds  thereof,  when  sold  by  virtue  of 
this  act;  and  for  the  purpose  of  distribution,  the  sheriff  or 
other  officer  shall  pay  such  proceeds  to  the  clerk  of  said  cir- 
cuit court,  to  be  by  said  court  distributed  among  such  claims 
filed,  or  as  shall  be  filed  according  to  this  act  before  petition 
filed  in  said  court  for  distribution  thereof,  and  among  such 
only ;  but  the  amount  paid  to  any  claimant  shall  not  be  paid 
over  to  him  until  after  his  claim  shall  have  been  filed  for 
three  months;  and  if  a  caveat  be  filed  against  such  claim  by 
the  owner,  or  by  any  claimant  or  claimants  owning  together 
one-third  of  the  lien  claims  filed  against  such  building,  then 
not  imtil  such  claim  shall  have  been  established  by  a  special 
judgment  thereon;  and  such  circuit  courts  shall  have  full 
power  to  adopt  such  rules  of  practice  and  pleading,  and  to 
make  all  orders  necessary  and  proper  to  carry  into  effect  the 
objects  of  this  act,  and  to  secure  a  proper  disposition  of  the 
proceeds  of  sales  to  all  persons  entitled  thereto  by  the  provi- 
sions of  this  act. 

"15.  And  he  it  enacted.  That  any  land  owner  desiring  to 
contest  any  claim  and  to  free  his  house  and  land  from  the 
lien  thereof,  may  pay  to  the  county  clerk  the  amount  of  such 
claim,  with  interest  thereon,  until  six  months  after  such  pay- 
ment, and  twenty-five  dollars  in  addition  thereto,  with  notice 
to  said  clerk  not  to  pay  over  the  same  imtil  such  claim  be 
established  by  suit;  which  sum,  or  so  much  thereof  as  is 
necessary,  shall  be  paid  to  such  claimant  upon  his  obtaining 
judgment  against  such  buildings  and  lands,  in  the  manner 
prescribed  in  this  act,  and  said  claim  shall,  from  the  pay- 
ment of  such  money  to  such  clerk,  be  a  lien  on  said  money, 
and  said  buildings  and  lands  shall  be  discharged  therefrom, 
and  no  execution  shall  issue  against  the  same  by  virtue  of 
such  judgment;  but  if  such  suit  is  not  commenced  within 
the  time  which  the  said  lands  would  be  discharged  by  the 
provisions  of  this  act  without  suit,  or  in  case  judgment  be 
given  therein  without  being  against  said  lands,  said  sum  shall 
be  repaid  to  him  by  said  clerk,  and  if  judgment  be  given 


HlSTOKlCAL    SUMMAEY.  23 

against  said  lands  for  an  amount  less  than  that  so  deposited, 
then  the  surplus  shall  be  returned  by  said  clerk  to  said  land 
owner. 

.  "16.  And  be  it  enacted.  That  where  a  summons  has  been 
issued  and  served  in  any  way  prescribed  by  this  act,  to 
enforce  any  building  claim  lien  against  any  building  and 
lands,  all  other  suits  commenced  by  sunmions  subsequently 
issued,  to  enforce  concurrent  liens  against  the  same  building 
and  lands,  may  be  stayed  by  the  claimant  therein  or  by  order 
of  the  court,  until  judgment  in  such  first  suit,  unless  notice  to 
enforce  such  other  claim  has  been  sensed,  or  a  caveat  has  been 
filed  against  paying  the  same,  as  hereinbefore  provided. 

"17.  And  he  it  e<nacted.  That  the  act  entitled  'An  act 
securing  to  mechanics  and  others  payment  for  their  labor 
and  materials  in  erecting  any  house  or  other  building  within 
the  limits  therein  mentioned,'  approved  April  fifteenth,  eigh- 
teen hundred  and  forty-six,  and  all  supplements  thereto,  and 
all  other  acts  and  parts  of  acts  contrary  to,  or  within  the 
purview  of  this  act,  are  hereby  repealed ;  but  such  repeal 
shall  not  affect  any  right  acquireil  or  lien  filed  under  said 
acts,  but  the  same  shall  remain  and  may  be  sued  and  prose- 
cuted in  all  things  as  if  said  acts  had  not  been  repealed." 

Subsequently  various  acts  supplemental  to  the  act  of  1853,  p. 
437,  or  in  modification  thereof,  were  passed,  viz.: 
•  1855,  p.     211.     Approved  March  9; 

1859.  p.     451.     Approved  March  16; 

1860,  p.     689.     Approved  March  22; 
1863,  p.     275.     Approved  March  14; 
1866,  p.  1015.     Approved  April  6; 
1868,  p.     369.     Approved  March  17; 

1870,  p.  65.  Approved  March  17; 

1871,  p.  66.  Approved  March  28; 
1873,  p.  71.  Approved  March  26; 
1876,  p.  66.  Approved  March  30. 

The  following  is  a  brief  review  of  these  various  acts : 
The  act  of  1855,  p.  211,  extended  the  lien  to  mills,  manufac- 
tories, and  the  land  whereon  the  same  were  erected  for  debts  con- 
tracted by  the  owner  or  with  his  written  consent  for  repairs  to 
fixed  machinery,  etc. 

The  act  of  1859,  p.  451,  extended  the  lien  to  all  buildings  and 
the  land  for  debts  contracted  by  the  owner  or  with  his  written 
consent  for  repairs  to  such  buildings:  "provided,  that  the  agree- 
ment (presumably  the  agreement  witnessing  the  owner's  assent) 
be  made  a  matter  of  record  in  the  office  of  the  clerk  of  the 
county." 


24  Mechanics  Lien  Law. 

The  act  of  1860,  p.  689,  defined  and  enlarged  the  meaning  of 
the  terms  "fixtures  for  manufacturing  purposes,"  as  used  in  the 
fifth  section  of  the  act  of  1853. 

The  act  of  1863,  p.  275,  was  sa  important  an  act  that  it 
is  here  set  out  in  full : 

"A  Supplement  to  the  act  entitled  'An  act  to  secure  to 
mechanics  and  others  payment  for  their  labor  and  materials 
in  erecting  any  building,'  approved  March  eleventh,  eighteen 
hundred  and  fiftv-three. 

"1.  Be  it  enacted^  hy  the  Senate  and  General  Assembhj 
of  the  State  of  New  Jersey,  That  the  sale  under  a  special 
scire  facias,  authorized  by  the  eleventh  section  of  the  act.  to 
which  this  is  a  supplement,  shall  convey  the  estate  of  the  own- 
er in  the  lands  and  in  the  buildings,  subject  to  all  mortgages 
and  other  incumbrances  created  and  recorded  or  registered 
prior  to  the  commencement  of  the  building;  and 
in  case  of  gearing  or  machinery,  the  bringing  the  same 
upon  the  premises,  shall  be  such  commencement ;  and  such 
prior  incumbrances  shall  have  priority  to  all  subsequent 
builders'  liens  upon  said  lands  and  upon  all  erections  thereon, 
except  such  as  by  law  may  be  removable  as  between  landlord 
and  tenant,  which  may  be  sold  and  removed  by  virtue  of  any 
building  lien  for  the  construction  of  the  same  free  from  such 
prior  incumbrances. 

"2.  And  he  it  enacted.  That  the  third  section  of  the  act 
to  which  this  is  a  supplement,  be  amended  by  authorizing 
and  empowering  any  person  who  may  have  furnished  mate- 
rials used  in  the  erection  of  any  such  house  or  building,  to 
give  the  notice  to  the  owner  or  owners  of  such  building  au- 
tliorized  by  said  section  and  the  materialman  shall  have  all 
the  rights  and  remedies  conferred  by  said  section  upon  the 
journeyman  or  laborers. 

"3.  And  he  it  enacted.  That  when  the  curtilage  or  lot  on 
which  the  building  is  erected  shall  not  be  surrounded  by  an 
enclosure  separating  it  from  adjoining  lands  of  the  same 
owner,  then  the  lot  on  which  the  building  lien  shall  extend, 
shall  be  such  tract  as  in  the  place  of  its  location  is  usually 
known  and  designated  as  a  building  lot,  and  bounded  by  the 
lines  laid  down  for  its  boundaries  on  any  map  made  for  the 
sale  of  it  or  on  file  in  any  public  office,  to  lay  out  in  lots  the 
tract  including  it,  and  in  cases  where  no  such  map  exists. 


Historical  Summary.  25 

such  lot  may  be  designated  bv  the  claimant  in  the  lien  claim, 
but  in  no  such  case  shall  the  same  exceed  half  an  acre,  or 
include  any  building  not  used  and  occupied  with,  or  intended 
to  be  used  and  occupied  with,  the  building  for  the  cost  of 
which  the  lien  is  claimed. 

"4.  And  he.  it  enacted.  That  the  words:  'and  no  building 
or  lands  shall  be  liable  for  work  done  by  any  person  not 
employed  by  the  owner  or  his  agent  on  his  account,'  con- 
tained in  the  latter  part  of  the  second  section  of  the  act  to 
which  this  act  is  a  supplement,  be  and  the  same  is  hereby 
repealed. 

''Approved  March  14,  1863." 

Our  attention  is  at  once  arrested  by  the  second  section  of  this 
act^  which  extended  the  right,  to  give  a  stop  notice,  to  material- 
men. The  act  of  1853,  p.  537,  §  3,  as  will  be  seen  by  reading  it, 
did  not  do  that,  in  that  it  omitted  any  provision  for  notice  by 
the  materialman  to  the  owner,  and  failed  to  provide  that  the 
owner  should  retain  the  amount  due  to  the  materialman  and 
pay  it  to  him.  as  was  noted  in  Carlisle  v.  Knayp,  22  Vroom  329. 

The  repealer  in  section  4,  is  also  significant. 

The  act  of  1866,  p.  1015,  extended  the  lien  to  buildings  and 
lands,  when  the  latter  were  the  lands  of  a  married  woman, 
whether  the  debt  was  for  the  erection  or  reparation  of  a  building; 
provided,  the  married  woman  consented  in  writing  to  the  work 
done  or  materials  furnished  before  a  claim  was  filed. 

The  act  of  1868,  p,  369,  related  to  the  description  of  the  lot 
or  curtilage  which  might  be  subject  to  lien  and  to  the  amendment 
thereof  before  final  judgment. 

The  act  of  1870,  p.  65,  provided  that  a  married  woman's  lands 
should  be  liable  to  a  lien,  etc.,  unless  she  filed  a  written  dissent, 
etc 

The  act  of  1871,  p.  66,  extended  the  lien  to  all  docks,  wharves 
and  piers  upon  any  navigable  river,  and  the  land  in  front  of  which 
they  might  be  erected  and  the  interest  of  the  owners  of  such  lands 
in  the  soil  or  waters  of  such  river,  etc. 

The  act  of  1873,  p.  71,  provided  for  apportioning  a  claim  be- 
tween two  or  more  buildings  built  by  the  same  person  or  persons. 

The  act  of  1876,  p.  66,  relieved  married  women's  lands  of  the 
liability  imposed  by  the  act  of  1870,  p.  65,  when  the  woman  owner 
did  not  authorize  the  work  or  was  without  knowledge  of  its  be- 
ing done.  J-  J    • 

All  of  the  acts  thus  reviewed  were  substantially  embodied  in 
the  Eevision  of  March  27,  1874,  as  printed  in  the  edition  of  1877 
at  p.  667,  §§  1-28,  which  is  readily  accessible  to  practitioners,  both 
in  that  revision  or  in  the  Gen.  Sts.,  p.  2063,  §§  1-28. 

Most  of  the  acts  passed  since  1876  and  prior  to  the  revision  of 
1898  are  to  be  found  in  the  Gen.  Sts.,  p.  2070,  §§  29-48.  These 
are: 


26  Mechanics  Lien  Law. 

1877,  p.  153. 

1878,  p.  243. 

322. 

1879,  p.  77. 

1883,  p.  24. 

1884,  p.  260. 
1888,  p.  423. 
1893,  p.  385. 

1895,  p.  313. 

Two  acts  not  included  in  this  list  deserve  a  word. 

By  the  act  of  1890,  p.  479,  the  provisions  of  the  second  section  of 
the  Revision  of  1874,  protecting  the  owner  who  had  filed  his  con- 
tract, were  coupled  with  a  requirement  that  there  must  be  a  re- 
lease of  claims,  pursuant  to  a  stipulation  to  be  inserted  in  the 
contract. 

By  the  act  of  1892,  p.  358,  the  act  of  1890,  p.  479,  was  amended 
in  sundry  particulars. 

Both  of  these  acts  were  repealed  by  the  act  of  1895,  p.  313,  §  9. 
They  were  certainly  extreme  measures.  The  first  one  imposed 
upon  the  owner,  already  sufficiently  burdened  with  liabilities  it 
would  seem,  the  duty  of  procuring  releases  from  all  possible  claim- 
ants, in  order  to  be  safe;  and  left  him  no  means  of  compelling 
the  production  of  such  releases,  if  he  had  been  unwary  enough 
to  omit  a  stipulation  for  their  production  from  his  contract.  It 
also  failed  to  provide,  in  express  terms  at  least,  that  an  owner 
paying  upon  the  faith  of  such  releases,  and  the  contractor's  affi- 
davit that  there  were  no  other  persons  who  could  claim,  should 
be  protected  as  against  other  claimants. 

The  act  of  1892  remedied  both  these  glaring  defects  by  pro- 
viding' that  the  contractor  should  produce  the  necessary  releases 
and  affidavits  before  he  could  demand  payment,  and  whether  the 
contract  called  for  such  production  or  not ;  and  by  making  a 
payment  upon  such  releases  and  affidavit  a  good  bar  against  all 
claimants  who  had  not  given  the  owner  written  notice  that  they 
had  done  work  or  furnished  materials,  or  were  about  to  do  so. 
The  cases  decided  under  these  acts  were,  Anderson  Lumber  Co. 
V.  Friedlander,  25  Vroom  375;  Magowan  v.  Stevenson,  29  Vroom 
31;   Bruce  v.  PearsaU.  30  Vroom  62. 

After  the  General  Statutes,  and  prior  to  the  Revision  of  1898, 
two  acts  were  passed : 

1896,  p.  103. 
1896,  p.  198. 

.  Both  were  embodied  in  the  Revision  of  1898.  The  following 
table  will,  perhaps  be  useful,  to  show  where,  in  the  act  of  1898, 
the  provisions  of  any  previous  act,  from  the  time  of  the  act  of 
1853,  are  embodied  or  are  covered  by  similar  or  other  provisions, 
etc. 

1853,  p.     437,  §     1 1898.   p.   538,   §     1 

2 2 

3 3 

4 7 


HiSTOElCAI.    SUMMAEY.  27 

5 8 

6 16 

7 17 

8 23 

9 24 

10 27 

11 28 

12 18 

13 31 

14 29 

15 32 

16 30 

1855,  p.     211,  §     1 I 

1859,  p.     451,  §     1 1" 

1860,  p.     689,  §     1 8 

1863,  p.     275,  §     1 28 

2 3 

3                                    21 

4.'.'.'.'.'.'.'. 2 

1866,  p.  1015,  §     1 Omitted,  see  now  13 

2 26 

1868,  p.     369,  §     1 See  now               21 

^ ■ 

1870,  p.       65,  §     1 13 

1871,  p.       66,  §     1 11 

1873,  p.      71,  §     1 22 

1876,  p.       66,  §     1 13 

1877,  p.     153,  §     1 If 

1878,  p.     243,  §     1 16 

322,  §     1 Omitted,  see  lo 

1879,  p.      77,  §     1. '.'.'. H  28 

1883,  p.       24,  §     1 10 

1884,  p.     260,  §     1 23 

2 24 

1888,  p.     423,  §     1 18 

1890,  p.     479,  §     1 Omitted 

2 Omitted. 

1892,  p.     358,  §     1 Omitted. 

2  Omitted. 

1893,  p.     385,  §     1.. 1898,  p.  538,  §   12 

2 12 

1895,  p.     313,  §     1 2 

9                          3 

o 4 

4 16,  18 

5;:::;:::; 5 

n                                          15,  28 

7:::::::::::..: 6 

1896,  p.     103,  §     1 31 

198,§     1 16,18 


28  Mechanics  Lien  Law. 

There  are  three  reported  cases  arising  under  the  lien  acts. 
earlier  than  the  act  of  1853. 

The  first  of  these  cases  is  Sherer  &  Nichols  v.  Collins,  2  Harr. 
181.  In  this  case  the  claim  was  for  labor  and  materials  in  erecting 
a  paper  mill,  and  was  filed  under  the  act  of  1835,  p.  148.  The 
claimant  brought  assumpsit  and  had  judgment.  Then  other  gen- 
eral judgment  creditors  of  the  owner  attempted  to  question  this 
judgment  (upon  a  case  stated  and  brought  into  the  Supreme 
Court  as  upon  a  writ  of  error)  upon  the  ground  that  the  claim- 
ant's judgment  was  for  a  sum  which  included  particulars  for 
which  he  had  no  right  of  lien.  It  was  held  that  the  judgment 
could  not  be  thus  collaterally  questioned  by  one  not  a  party  to 
it;  but  it  was  intimated,  by  Hornblower,  C.  J.,  that  in  a  suit 
to  enforce  a  lien,  whether  by  scire  facias  or  assumpsit,  it  would 
be  irregular  to  include  any  demand  beyond  that  for  which  the 
statute  gives  the  lien.  The  opinions  of  the  justices  in  the  case 
note  that  the  construction  of  the  act  of  1835  bristled  with  diffi- 
culties, not  to  say  impossibilities. 

The  second  case  is  Vandyne  v.  Vayiness,  1  Halst.  Ch.  485,  and 
arose  under  the  act  of  1835.  The  chancellor  held  that  the  right  of 
lien  extended  to  so  much  of  the  whole  tract  upon  which  a  build- 
ing was  erected,  as  would,  with  the  building,  suffice  to  satisfy 
the   claim. 

The  third  case  was  Sinnichsov  v.  Lynch,  1  Dutch.  317.  It 
arose  under  the  Revision  of  1846,  as  amended  by  the  act  of 
1851,  p.  187.  It  decided  that  on  scire  facias  to  enforce  the  lien 
given  by  the  act,  the  claimant's  debtor  as  well  as  the  owner  of 
the  building  and  land  must  be  joined,  as  a  party  defendant. 


CHAPTER   II. 


The  Text  of  the  Act  of  1898  (Revision),  with 

All   Subsequent    Related   Acts   and 

Notes  of  Pertinent  Decisions. 

(20) 


MECHANICS  LIEN  LAW. 

Revision  of  1898. 


TITLE  OF  STATUTE. 

"An  Act  to  secure  to  mechanics  and  others  payment  for 
their  labor  and  material  in  erecting  any  building  (Revision 
of  one  thousand  eight  hundred  and  ninety-eight)." 

1898,  p.  538,  Approved  June  14,  1898. 

The  title  of  the  act  of  1898  is  the  same  as  that  of  the  act  of 
1853,  p.  437. 

CONSTITUTIONALITY  OF  THE  STATUTE.  In  Gardner 
&  Meeks  Co.  v.  New  York  Central  R.  R.  Co.,  43  Vr.  257,  the 
Court  of  Errors  and  Appeals  holds  that  the  mechanics  lien  act 
does  not  deprive  an  owner  of  property,  without  due  process  of 
law,  nor  does  it  interfere  with  his  right  to  acquire  and  enjoy 
property,  and  is  not,  therefore,  unconstitutional  on  either  ground. 

CONSTRUCTION  OF  THE  STATUTE.  The  remedy,  under 
the  statute,  must  not  be  extended  beyond  its  obvious  design  and 
clear  requirements.  Ayres  v.  Revere,  1  Dutch.  474;  Associates  v. 
Davidson,  5  Dutch.  415 ;  Griggs  v.  Stone,  22  Vroom  549 ;  Scudder 
V.  Harden,  4  Stew.  503. 

In  Ayres  v.  Revere,  Chief  Justice  Green  said:  "The  lien  and 
the  mode  of  enforcing  it  are  creatures  of  the  statute.  They  are 
unknown  to  the  common  law.  The  statute  charges  the  property 
of  one  man  with  the  debt  of  another.  Though  the  owner  may 
have  paid  the  contractor  in  full  for  the  erection  of  the  building 
and  for  all  the  materials  used  in  its  construction,  his  property  is- 
nevertheless  charged  by  the  default  of  the  contractor  with  the 
repayment  of  the  debt.  It  gives  preference  to  one  clAss  of  cred- 
itors over  another.  The  man  who  has  furnished  a  brick,  or  a 
stone,  or  a  plank,  for  the  erection  of  the  building,  or  who  has 
labored  a  day  in  its  construction  is  secured  his  remuneration  in 
full,  while  those  who  have  furnished  provisions  for  the  owner  and 
his  family,  who  have  supplied  them  with  the  necessaries  of  life, 
or  who  have  toiled  in  their  service,  are  deprived  of  all  means  of 
recompense  until  the  favored  creditors  are  satisfied.  It  reaches 
to  the  claims   of  mortgage  and  judgment  creditors,   and  super- 

(31) 


32  Mechanics  Lien  Law. 

sedes  even  these  eucumbrances,  if  created  after  the  building  is 
commenced,  in  favor  of  the  subsequently  created  debts  of  a  fa- 
vorite class  of  creditors.  It  gives  to  the  favored  creditors  a  remedy 
not  only  against  his  debtor,  but  against  an  innocent  third  party, 
with  whom  he  has  never  contracted,  and  for  whom  he  has  never 
labored.  It  gives  him  a  cimiulative  remedy,  which,  if  enforced, 
may  compel  the  owner  to  pay  a  debt  which  he  has  once  satisfied 
in  full;  and  it  may  be,  as  in  this  instance,  that  this  hardship 
will  result  from  mere  inadvertence  in  filing  his  contract,  or  from 
misapprehension  of  the  precise  meaning  of  a  statute. 

These  suggestions  are  not  made  with  the  design  of  impugning 
the  wisdom  or  the  policy  of  the  law,  but  to  show  that  the  statute 
is  not  of  that  purely  remedial  character  which  calls  for  a  pecu- 
liarly liberal  construction  at  the  hands  of  the  court.     The  statute 

has  prescribed  the  mode  of  proceeding  to  enforce  the  lien. 

Neither  a  sound  construction  of  the  statute,  nor  the  promotion 
of  the  ends  of  justice  requires  that  the  statutory  remedy  should 
be  extended  beyond  the  obvious  design  and  clear  requirements  of 
the  law." 

Justice  Whelpley,  in  Associates,  etc.,  v.  Davidson,  said:  "The 
lien  law,  so  far  as  it  operates  to  charge  the  landls  of  a  party  with 
a  debt  not  contracted  by  him,  or  for  his  ultimate  benefit,  should 
be  strictly  construed." 

Vice  Chancellor  Van  Fleet,  in  Dalrymple  v.  Ramsey,  18  Stew. 
494,  said:  "The  statute  is  an  innovation.  The  lien  and  the 
mode  of  enforcing  it  are  creatures  of  the  statute.  The  lien  is 
just  what  the  statute  makes  it.  The  courts  have  no  power  either 
to  enlarge  or  lessen  it.  Independent  of  the  statute,  a  debt  con- 
tracted in  the  erection  of  a  building  stands  no  higher,  in  point 
of  natural  justice,  than  many  other  debts,  and  the  lienable  qual- 
ity of  such  a  debt  should,  therefore,  be  rigidly  restricted  to  just 
what  the  legislature  has  made  it."  See  also  Bartley  v.  Smith,  14 
Vroom  321. 

In  McNah.  etc.,  Co.  v.  Paterson  Building  Co.,  2  Buch.  929,  the 
Court  of  Errors  and  Appeals  says,  per  Dill,  J.:  "It  may  be 
argued  with  force  that  Mechanics  Lien  laws  are,  as  a  rule,  to 
be  construed  strictly  against  the  claimant  and  in  favor  of  the 
the  owner  of  the  land  in  so  far  as  they  require  the  owner  to  pay 
a  debt  that  he  did  not  contract,  and  for  a  consideration  that  he 
may  already  have  paid  to  the  contractor." 

See  also  the  elaborate  opinions  of  Vice  Chancellor  Stevenson, 
in  McNah,  etc.,  Co.  v.  Paterson  Bid.  Co.,  1  Buch.  133,  and  Beclc- 
hard  v.  Rudolph,  2  Rob.  315.  Although  the  Court  of  Errors  and 
Appeals  did  not  adopt  his  view  of  the  construction  that  should 
be  given  to  the  third  section  of  the  act,  on  the  point  there  in 
question ;  it  will  not  do  to  assume  that  the  court  is  committed  to 
the  view  that  a  provision  of  the  act,  which  is  plainly  in  deroga- 
tion of  common  right,  is  not  to  be  construed  strictly  in  favor  of 
the  owner;  although  it  is  somewhat  difficult  to  perceive  how  the 
third  section  can  be  considered  as  being  not  in  such  category. 
Perhaps   the   true   solution  is   that   the  construction   adopted  by 


Kevision  of  1898,  §  1.  33 

the  Court  of  Errors  and  Appeals,  in  the  Beckhard  and  McNah 
cases  (2  Eob.  740;  2  Buch.  929),  is  not  a  liberal  construction  at 
all,  but  is  one  which  results  from  the  plain  and  usual  meaning 
of  the  words  of  the  act,  read  in  the  light  of  its  "obvious  design 
and  clear  requirements."  When  there  is  room  for  construction  at 
all  the  settled  canons  of  the  law  must  of  course  apply,  and  the 
dis^tinctions  pointed  out  by  Vice  Chancellor  Stevenson,  in  the 
McNah  case,  as  to  the  nature  of  the  transaction,  the  legal  rela- 
tion of  the  parties,  and  the  general  jwlicy  of  the  law,  are  always 
material  to  be  attended  to. 

Building  and  curtilage  liable  to  lien  for  the  erection  and 
construction  of  building". 

1.  Every  building  hereafter  erected  or  built  ^  within  this 
state  shall  be  liable  for  the  payment  of  any  debt  contracted 
and  owing  to  any  person  for  labor  jDerformed  or  materials 
furnished  for  the  erection  and  construction  thereof,^  which 
debt  shall  be  a  lien  ^  on  such  building,  and  on  the  land 
whereon  it  stands,^  including  the  lot  or  curtilage  whereon 
the  same  is  erected.^ 

1898,  p.  538,  §  1;  1853,  p.  \37,  §  1;  Revision  IBOJf,  §  1. 
This  section  is  identical  with  ^  1  of  the  act  of  1863,  p. 
■^37,  and  with  ^  1  of  the  Revision  of  187Jf. 

1.  A  HEATER  AND   RANGE   are  part  of  the  building,  al-  * 
though  slightly  attached  thereto,  if  put  in  by  the  owner  as  part  of 
the  building.    Erdman  v.  Moore,  29  Vroom  445;    Porch  v.  Agnew 
Co.,  4  Eob.  328  (Grey,  V.  C). 

A  TWELVE  FOOT  RANGE,  THREE  FIRES,  THREE 
OVENS,  built  into  the  building  by  brick  flues  coimecting  with 
the  chimneys,  BOILER  and  STEAM  PIPE  coming  through  the 
floor  and  connecting  with  the  boiler  of  the  house,  large  HOTEL 
VEGETABLE  KETTLES  connected  with  the  steam  pipes,  A 
TWENTY-FIVE  FOOT  HOOD  over  these  fixtures  and  various 
other  KITCHEN  EQUIPMENTS  fitted  to  the  supply  and  waste 
pipes  of  the  building,  all  in  a  hotel  kitchen  and  attached  with 
the  owner's  intention,  and  that  of  the  party  supplying  them,  that 
they  should  become  parcel  of  the  hotel  structure,  are  the  subject 
of  a  mechanic's  lien. 

ADDITIONS  to  a  building,  and  fixed  machinery  or  gearing 
or  other  fixtures  for  manufacturing  purposes  are  a  building,  by 
virtue  of  §  8,  which  see.  In  many  instances  these  fixtures  are 
part  of  the  realty,  without  reference  to  the  provisions  of  §  8. 
Bates  Co.  v.  Trenton,  41  Vroom  684  (E.  &  A.). 

ALTERATIONS  of  an  old  building  are  not  a  building  erected 

or  built,  within  the  meaning  of  this  section;    although  they  make 

such  changes  that,  in  a  fair  sense,  it  might  be  said  to  be  a  new 

structure.     Combs  v.  Lippincoll,  6  Vroom  481.     But  see  §  10,  by 

3 


1^1 


f^iH- 


34  Mechanics  Lien  Law. 

which  (since  1883)  a  mechanic's  lien  is  extended  to  a  building  and 
its  curtilag-e,  for  alterations. 

KEPAIKS  to  a  building.  The  act  of  1859  extended  the  lien, 
against  the  building  and  curtilage,  to  the  case  of  repairs,  with 
certain  restrictions  as  to  other  encumbrancers.     See  §  10. 

THE  COST  OF  HAULING  engines  from  the  freight  station 
to  their  site  in  the  power  house  is  properly  included  in  the  claim 
for  erecting  them,  when  the  duty  to  haul  them  was  part  of  the 
contract  to  erect  them.  Bates  Co.  v.  Trenton  Co.,  41  Vroom  684 
(E.  &  A.). 

2.  AN  ARCHITECT  who  draws  plans  and  superintends  the 
building  may  have  a  lien.  Mutual  Benefit,  etc.,  Co.  v.  Rowand, 
11  C.  E.  Gr.  389. 

ENTIRE  CONTRACT.  A  claimant  who  has  furnished  ma- 
terials, under  an  entire  contract  between  him  and  the  builder, 
may  have  a  lien  upon  a  quantum  valebat,  if  the  contract,  though 
unfulfilled,  was  lawfully  rescinded.  Brewing  Co.  v.  Donnelly,  30 
Vroom  48.  In  the  absence  of  such  rescission,  the  right  to  file  a 
lien  accrues  only  after  the  contract  has  been  completed.  Edwards 
V.  Derrickson,  4  Dutch,  39  at  p.  68 ;    5  Dutch.  468. 

MATERIALS  NOT  USED.  The  right  to  the  lien  for  ma- 
terials depends  upon  the  fact  that  the  debt  was  incurred  and 
the  materials  furnished  for  the  building;  and,  in  the  absence 
of  fraud,  it  is  immaterial  that  they  were  not  in  fact  so  used. 
Morris  Co.  Bank  v.  Rockaivay  Mfg.  Co.,  1  McCart.  189;  Campbell 
V.  Taylor  Mfg.  Co..  51  Atl.  R.  723;  Bell  v.  Mecum,  68  Atl.  R.  149 
(E.  &  A.). 

OWNER'S  CONSENT.    See  §§  7  and  13  post. 

WHO  MAY  HAVE  A  LIEN.  All  persons  who,  under  any  cir- 
cumstances whatever,  furnish  labor  or  materials  for  the  building 
may  have  a  lien ;  unless  precluded  by  the  fact  that  a  written  con- 
tract has  been  filed.  Van  Pelt  v.  Hartough,  2  Vroom  331;  Mur- 
phy V.  Nicholas,  37  Vroom  414;  Coddington  v.  Beehe,  2  Vroom 
477;  Gardner  &  Meeks  Co.  v.  New  York  Ceritral  R.  R.,  43  Vroom 
257  (E.  &  A.)  ;    Snyder  v.  New  York  Co.,  43  Vroom  262. 

In  the  absence  of  conflicting  claims  between  the  i)erson  who 
actually  does  the  work  and  the  employer  of  such  person,  the  em- 
ployer is  entitled  to  have  a  lien  therefor.  Bates  v.  Trenton  Co., 
41  Vroom  684  (E.  &  A.). 

ASSIGNABILITY  OF  LIEN  CLAIM.  There  are,  as  yet.  no 
reported  cases  on  this  subject  in  this  State.  It  is  generally  held 
in  other  jurisdictions,  and  it  would  seem  to  be  beyond  question 
here,  that  a  perfected  lien  claim  may  be  assigned  the  same 
as  any  other  chose  in  action  may  be.  Like  a  mortgage,  the  lien 
claim  is  a  security  for  the  debt,  so  that,  presumably,  an  assign- 
ment of  the  debt  would,  ipso  facto,  assign  the  lien,  in  the  ab- 
sence of  any  thing  to  control  otherwise ;  while  an  assignment  of 
the  lien  alone  would  not  probably  assign  the  debt  itself. 

Whether  recent  statutes  enabling  the  assignee  of  a  chose  in 
action  to  bring  suit  in  his  own  name  would  apply,  or  not,  is, 
of  course,  a  question  for  consideration;    but  the  better  practice. 


Revision  of  1898,  §  1.  35 

in  any  ease,  would  be  to  bring  suit  in  the  name  of  the  claimant 
for  the  benefit  of  the  assignee. 

It  probably  is  not  necessary  that  the  assignment  should  ex- 
pressly confer  the  right  to  enforce  the  claim  in  the  name  of  the 
claimant,  but  prudence  will  obviously  dictate  that  an  assignment 
should  be  so  drawn. 

As  to  the  matter  of  assigning  a  right  to  a  lien,  before  the  as- 
signor has  himself  perfected  it,  that  is,  an  inchoate  lien,  there  is 
much  more  doubt.  Decisions  in  other  jurisdictions  vary  upon 
that  question,  some  holding  that  an  inchoate  lien  can  and  others 
that  it  cannot,  be  assigned.  Reference  should  be  had  to  works 
which  treat  generally  upon  the  subject.  The  scope  of  this  manual 
is  purjwsely  limited  to  the  decisions  of  the  courts  of  this  State, 
and  the  only  case  that  refers  to  the  subject  at  all,  so  far  as  I 
am  aware,  is  South  End  Imp.  Co.  v.  Harden,  52  Atl.  1127,  in 
which  it  was  found  unnecessary  to  consider  whether  the  assignee, 
or  the  assignor,  of  a  debt  for  materials  should  take  the  steps  nec- 
essary to  perfect  the  inchoate  lien,  by  giving  notice,  ete.  See  also 
Hall'v.  Jersey  City,  17  Dick.  489. 

3.  A  LIEN  ATTACHES  as  of  the  date  the  building  was  be- 
gun. Manhattan,  etc.,  Co.  v.  PauUson,  1  Stew.  304.  See  §  28  and 
cases  there  cited,  as  to  what  is  the  beginning  of  the  building. 

WAIVER  OF  LIEN.  The  benefit  of  the  statute  may  be 
waived  by  taking  security  in  another  form.  QuicJe  v.  Corlies,  10 
Vroom  11. 

TAKING  NOTES  for  a  lien  claim  is  no  abandonment  of  the 
right  to  a  lien.  Edwards  v.  Derrichson,  4  Dutch.  39 ;  SUngerland 
V.  Lindsley,  1  N.  J.  L.  J.  115 ;  nor  is  an  agreement  to  take  them 
a  waiver,  France  v.  Netherwood,  2  N.  J.  L.  J.  90;  but  if  a  note 
is  taken,  it  suspends  the  right  until  the  maturity  of  the  note,  Dey 
V  Anderson,  10  Vroom  201;  or  until  its  surrender  and  cancella- 
tion, perhaps.  See  Burd  v.  Huff,  17  N.  J.  L.  J.  80.  Where  a 
material  man  accepted  two  notes,  maturing  at  different  times,  lor 
a  general  account  current,  a  part  of  which  was  for  the  materials 
for  which  he  claimed  a  lien,  and  nothing  was  said,  as  to  how  the 
notes  were  to  be  applied  to  the  account,  and  the  note  first  matur- 
ing was  not  paid,  and  the  other  did  not  mature  until  after  the 
time  to  file  a  lien  claim  would  expire;  it  was  held,  by  the  Court 
of  Errors  and  Appeals  (Dixon,  J.,  dissenting),  that  the  note  which 
had  not  matured  must  be  applied  to  the  earliest  items  of  the 
account,  pro  tanto,  even  although  the  result  was  to  deny  the  lien, 
as  the  items  included  in  the  lien  claim  were  among  such  earlier 
items.    Dey  v.  Anderson.  10  Vroom  201.  ^-,^^-r^  .  ^ 

ACCEPTING  AN  ASSIGNMENT  OF  THE  CONTRAC- 
TOR'S RIGHTS  under  a  building  contract,  as  collateral  security, 
does  not  impair  the  assignee's  right  to  claim  a  lien  for  his  ma- 
terials or  labor  furnished.  Stevenson  v.  Meeker,  18  JN.  J.  L.  J. 
51;    Taliaferro  V.  Steve7ison,  29  Yroom  165  -dav   tat 

A  BUILDER'S  AGREEMENT  TO  TAKE  HIS  PAY  IN 
MORTGAGES  precludes  his  right  to  claim  a  lien,  when  it  does 
not  appear  that  there  has  been  any  fraud,  or  any  inability  or  re- 


36  MECHAisrics  Lien  Law. 

fusal  to  give  them  in  compliance  with  the  contract,  upon  demand. 

Weaver  v.  Demuth,  11  Vroom  238. 

4.  A  LOT  9F  LAND  UNDER  TIDE  WATER,  over  which  a 
floating  dock  is  constructed  and  moored,  is  not  a  lot  or  curtilage 
within  the  meaning  of  this  section,  Coddington  v.  Beehe,  2  Vroom 
477;    but  see  now,  §  8. 

5.  THE  LAND  OF  A  MINOR  cannot  be  subjected  to  a  me- 
chanic's lien.  Hall  v.  Achen,  18  Vroom  340;  nor,  prior  to  the 
married  woman  acts,  could  that  of  a  MARRIED  WOMAN,  John- 
son V.  Parker,  3  Dutch.  239. 

MUNICIPAL  LANDS,  cannot  be  liable  to  a  mechanic's  lien; 
when  such  lands  are  used,  or  designed  to  be  used,  for  its  public 
purposes.  Frank  v.  Freeholders^  10  Vroom  347.  But  see  below 
imder  §  3. 

A  MERE  TRANSITORY  SEIZIN  is  insuiiicient  to  support  a 
lien,  Clark  v.  Butler,  5  Stew.  664;  Macintosh  v.  Thurston,  10  C.  E. 
Gr.  242. 

ESTATE  OF  OWNER.  The  owner  of  the  building  must  have 
some  estate  in  the  land,  in  order  that  a  lien  may  attach  to  either 
the  land  or  the  building,  Coddington  v.  Beehe,  2  Vroom  477;  Bab- 
hitt  V.  Condon,  3  Dutch.  154;  Leaver  v.  Kilmer,  59  Atl.  643  (E.  & 
A.) ;  Wm.  H.  Atkinson  Co.  v.  Shields  Co.,  72  Atl.  81  (E.  &  A.) ; 
but  it  is  not  necessai-y  that  he  should  have  an  estate  when  the 
building  is  begun,  §  28  gives  the  lien  on  "the  estate  which  the 
owner  had  at  the  commencement  of  the  building,  or  which  he 
subsequently  acquired,"  and  the  right  having  once  arisen,  remains 
effective  against  any  subsequent  grantee.  Stewart  Co.  v.  Trenton 
Co.,  42  Vroom  568  (E.  &  A.). 

ESTATE  BY  ENTIRETY.  Prior  to  the  married  woman's  acts, 
the  estate  of  the  husband,  for  the  joint  lives,  was  the  only  estate 
which  could  be  subjected  to  a  mechanic's  lien.  Washburn  v. 
Burns,  5  Vroom  18.  In  the  case  last  cited  the  husband  contracted 
to  have  the  building  erected,  the  wife  gave  no  consent;  and  it 
was  held,  that  the  husband's  estate,  only,  was  liable  to  the  lien. 
The  case  arose  and  was  decided  before  1870,  when  the  act  which 
is  now  section  13  ix)st,  was  passed. 

EQUITABLE  ESTATES.  In  Corcorari  v.  Jones,  12  N.  J.  L  J. 
38,  per  Scudder,  J.,  at  circuit,  it  was  held  that  a  court  of  la.w,  in 
a  suit  on  a  lien  claim,  cannot  take  cognizance  of  an  equitable 
estate,  such  as  the  right  of  a  tenant  to  exercise  an  option  of  pur- 
chase, on  the  expiration  of  his  tenancy.  In  Dalrymple  v.  Ramsey, 
18  Stew.  494,  V.  C.  Van  Fleet,  in  an  able  opinion,  held  that  the 
statute  does  not  extend  to  equitable,  but  only  to  legal,  estates; 
and  he,  therefore,  held  that  a  claim  could  not  be  enforced,  as  a 
lien,  against  the  estate  of  the  beneficiary,  under  a  resulting  trust, 
who  was  in  possession  of  the  land  and  caused  the  buildings  to  be 
erected  thereon. 

On  the  other  hand,  in  National  Bank,  etc.  v.  Sprague,  5  C.  E.  Gr. 
13,  it  was  held  that  a  lien  does  attach  to  the  equitable  estate  of  a 
vendee  in  possession  who  subsequently  obtains  a  conveyance;    and 


Revision'of  1808,  §  2.  37 

in  Currier  v.  Cummings,  13  Stew.  145  (per  Bird  V.  C),  it  was 
held  that  it  attached  to  the  estate  of  a  tenant  in  possession  with 
an  option  to  purchase  at  the  expiration  of  his  tenancy,  althoug-h 
in  the  meantime  the  tenancy  has  expired,  the  tenant  has  yielded 
possession,  and  has  failed  to  exercise,  and  does  not  claim  the  right 
to  exercise  his  option.  Finally,  in  Scott  v.  Reeve,  10  N.  J.  L.  J. 
12  (per  Parker,  J.,  at  Circuit)  it  was  held,  in  a  suit  to  enforce 
a  lien  claim,  that  the  plaintiff  should  have  judgment  against  the 
estate  of  a  vendee  in  possession,  who  died  without  obtaining  a 
conveyance  and  whose  heirs  subsequently  released  their  right  to  a 
conveyance. 

Effect  of  filing'  a  -written  building  contract ;  excludes  lien 
of  any  but  contractor. 

2.  When  (ever)  any  building-  shall  be  erected  in  whole 
or  in  part  bv  contract  in  -writing,^  such  bnildino:  and  the 
land  -vvhereon  it  stands  shall  be  liable  to  the  contractor 
alone  ^  for  work  done  or  materials  furnished  in  pursuance  of 
such  contract ;  provided,  said  contract,  or  a  duplicate  thereof, 
(together  with  ths  specificaiions  accompmiymcf  the  same,  or 
a  copy  or  copies  thereof ,Y  ^  ^\e(\  in  the  office  of  the  clerk 
of  the  county  in  which  such  building  is  situate  before  such 
work  done  or  materials  furnished.^ 

1898,  p.  538,  §  2;  185S,  p.  m,  §  2;  186S,  p.  215,  §  ^; 
Rev.  187 Jf,  §  2;   1895,  p.  SIS,  §  i  (— ). 

The  words  in  parenthesis  (  —  )  were  added  to  this  section  by  the 
act  of  1895,  otherwise  the  section  is  practically  identical  with  the 
act  of  1853.  §  2,  and  the  Revision  of  1874,  §  2;  but  the  act  of 
1853  had  at  the  end  of  the  section  the  following  words  which  were 
rei)ealed  by  the  act  of  1863,  p.  275,  §  4,  and  so  were  omitted  iu 
the  Revision  of  1874 — "and  no  building  or  land  shall  be  liable  for 
work  done  by  any  person,  not  employed  by  the  owner  or  his  agent, 
on  his  account."  The  effect  of  these  words,  as  held  by  the  Court 
of  Errors  in,  Associates,  etc.,  v.  Davison,  5  Dutch.  424,  had  been, 
to  exempt  a  building  from  the  lien  of  any  employee  of  the  con- 
tractor, when  there  was  a  contract  in  writing,  even  although  it 
had  not  been  filed.  In  Van  Pelt  v.  Hartough,  2  Vroom  331,  it 
was  said  (i^er  Beasley,  C.  J.)  that  the  provisions  of  the  first  sec- 
tion were  so  comprehensive,  that,  if  left  unconfined  by  subsequent 
restrictions,  a  lien  would  be  given  to  all  persons  who,  under  any 
circumstances  whatever,  furnished  either  labor  or  materials  for 
the  building.  The  omission  of  these  words,  by  the  act  of  1868  has, 
therefore,  left  the  comprehensiveness  of  the  first  section  unre- 
stricted, except  in  the  case  of  a  contract  which  is  in  writing  and 
has  been  filed. 


38  Mechanics  Lien  Law, 

See  at  the  end  of  Note  3,  below,  for  the  text  of  this  section 
as  amended  by  the  act  of  1910,  page  472. 

See  under  BUILDING  CONTKACT  (Forms  No.  1,  ete.)  for 
the  cases  upon  the  various  provisions  usually  contained  therein. 

1.  FEAUDULENT  CONTEACT.  The  contract  must  be  neither 
fictitious  nor  fraudulent;  it  must  be  between  parties  who  are 
actually  contracting  with  each  other,  Young  v.  Wilson,  15  Vroom 
161,  reversing  s.  c,  3  N.  J.  L.  J.  209 ;  and  must  honestly  state  the 
real  price,  Murphy,  etc.,  Co.  v.  Nicholas,  49  Atl.  E.  447;  otherwise, 
filing  the  contract  will  not  protect  from  liens  of  material  men  and 
laborers. 

OWNEE'S  SIGNATUEE  TO  CONTEACT.  The  Supreme 
Court  in  Willetts  v.  Earl,  24  Vroom  270,  decided  that,  in  order 
that  the  lands  of  the  owner  might  be  protected  from  liens  by  the 
filing  of  the  contract,  such  contract  must  appear,  on  its  face,  to 
be  the  contract  of  such  owner.  The  owner  in  that  case  was  a 
married  woman  and  the  contract,  which  was  filed,  purported  to  be 
the  contract  of  her  husband  only,  as  owner,  and  was  signed  by 
him  only.  The  reasoning  was  that  a  contract  which  did  not 
itself  disclose  that  it  was  the  contract  of  the  actual  prin- 
cipal would  not  show  one  of  the  essentials  of  such  contract;  and 
so  would  not  be,  as  to  such  essential,  a  contract  in  writing:  that 
the  owner's  name  is  probably  the  most  significant  and  notorious 
fact  by  which  a  filed  contract  can  be  connected  with  the  building 
to  be  erected  under  it :  that  the  owner  is  the  one  interested,  and 
therefore  under  a  duty,  to  file  the  contract,  in  order  to  exempt  his 
property  from  liens :  that  if  the  filing  of  a  contract  by  an  agent 
in  his  own  name  is  sufficient,  parties  interested,  who  had  learned 
the  name  of  the  real  owner,  would  be  chargeable  with  notice  of 
whatever  agencies  he  might  have  chosen  to  create  which  would 
be  an  unreasonable  burden  to  impose  upon  them :  and  that  under 
the  construction  adopted,  the  filed  contract  will  indicate,  to  pe;r- 
sons  whose  claims  to  lien  are  barred,  the  party  upon  whom,  m 
a  proper  case,  notice  under  the  third  section  may  be  sei-ved. 

In  Neill  V.  Watson,  15  N.  J.  L.  J.  138,  in  an  identical  case, 
Depue,  J.,  at  circuit,  had  previously  held  that  the  filing  of  such 
a  contract  did  protect  from  lien  the  land  of  the  married  woman 
owner;  because,  by  virtue  of  the  act  of  1876  (now  §  13),  her 
lands  are  made  liable  for  any  building  erected  upon  them  with 
her  knowledge,  unless  she  files  the  written  dissent,  as  there  speci- 
fied, and  that  as  the  contract,  when  filed,  left  her  lands  still  liable 
to  the  contractor,  they  should  be  exonerated  from  other  liens 
thereby,  and  without  obliging  her  also  to  file  such  written  dissent. 
In  Earle  v.  Willets,  27  Vroom  334,  the  Court  of  Errors  and  Ap- 
peals reversed  the  decision  of  the  Supreme  Court,  m  the  case 
first  above  cited,  and  held  that  the  filing  of  the  contract  protected 
the  wife's  lands  from  liens,  other  than  that  of  the  contractor,  in 
the  absence  of  anything  to  indicate  that  the  contrax^t  was  thus 
executed  with  any  fraudulent  intent  to  cheat  workmen  or  material- 
men.    In  thus  holding,  the  opinion  of  the  Court  of  Errors  and 


Revision  of  1898,  §  2.  39 

Appeals  does  not  discuss  whether  or  not  a  married  woman  is  en- 
titled to  the  protection  of  filing  the  contract  because  of  the  pe- 
culiar liability  of  her  lands.  It  does  not  refer  to  §13,  at  all,  but 
puts  the  decision  on  the  ground  tJiat  the  language  of  §  2  does 
Hot  import  that  the  contract  there  mentioned  must  be  made  in, 
or  signed  with,  the  name  of  the  owner.  The  proposition — that  a 
contract  which  does  not  disclose,  either  in  the  body  of  it  or  by 
the  manner  in  which  it  is  signed,  the  name  of  the  person  who  is 
actually  the  one  contracting,  as  owner,  is  not,  in  an  essential  par- 
ticular, a  "contract  in  writing" — is  not  discussed.  The  reasoning 
of  the  opinion  is  applicable  to  the  case  of  any  owner. 

In  the  case  of  Gardner  &  Meeks  Co.  v.  Herold,  72  Atl.  24,  con- 
curring opinion  of  Parker,  J.,  74  Atl.  568,  the  same  situation  was 
presented  to  the  Court  of  Errors  and  Appeals,  but  this  time  in  an 
action  at  law  upon  a  stop  notice  given  by  a  materialman  to  the 
married  woman  owner.  It  was  held,  that  such  notice  was  properly 
given.  In  his  opinion  concurring  in  that  result.  Justice  Parker 
rests  his  approval  on  the  ground  that  the  contract  was  found  to 
be  the  contract  of  the  wife,  signed  by  her  husband  as  her  agent, 
with  no  fraud  intended.  In  the  opinion  of  Justice  Swayze,  it 
is  noted  that  the  decision  does  not  make  it  possible  for  a  material- 
man to  serve  a  stop  notice  upon  an  owner  in  any  ease  where 
the  contractor  could  not  have  a  right  of  lien,  as  against  him ;  and 
it  is  said  that  such  right  of  lien  can  exist  only  where  the  build- 
ing is  authorized  by  the  owner,  or  built  with  his  knowledge,  ex- 
cept in  the  case  of  married  women  who  are  prestmied  to  consent, 
unless  they  file  an  objection;  and  it  is  further  said,  that  the 
provision  that  her  dissent  shall  state  that  the  building  is  being 
erected  against  her  wishes  and  consent  involves  a  pretty  clear  im- 
plication tTiat  the  statutory  consent  is  not  to  be  presumed  except 
in  a  case  where  she  has  knowledge  and  fails  to  file  her  dissent. 
It  would  seem  that  the  proviso  at  the  end  of  this  same  section  (13) 
involves,  much  more  strongly,  the  same  implication,  for  it  says 
that  her  lands  shall  not  be  liable  to  a  lien  for  any  building  or  re- 
pairs built  or  done  without  her  knowledge. 

It  is  plainly  just  that  the  filing  of  such  a  contract  should  be 
held  to  protect  a  married  woman's  lands  from  liens,  when  she 
has  had  knowledge  of  the  building,  without  filing  her  dissent; 
because  the  statute  (§  13),  by  conclusively  presuming  her  con- 
sent from  her  knowledge,  makes  such  a  contract  her  contract,  and 
60  imputes,  to  every  one  concerned,  the  knowledge  that  it  is  hers. 
In  such  case,  it  is  not  an  essential  part  of  the  written  contract 
that  it  should  disclose  the  fact  that  she  is  the  principal  party,  as 
owner,  thei-ein :  the  statute  operates  to  bind  her  lands,  and  affects 
all  persons  concerned,  as  claiming  liens,  and,  therefore,  as  assert- 
ing the  right  to  give  stop  notices,  just  as  though  such  contract 
were,  on  its  face,  expressed  to  be  hers.  She  may,  therefore,  have 
the  benefit  of  the  filing  of  such  a  contract,  and  may  be  accountable 
to  claimants,  upon  stop  notice,  because,  without  her  name  appear- 
ing therein  as  the  principal,  it  is  her  contract  which  in  contempla- 
tion of  the  statute  is  filed.     Upon  this  ground  the  decisions  thus 


40  Mechanics  Lien  Law. 

far  made,  may  be  rested  with  assurance,  as  they  are  all  dsKjisions 
of  cases  of  married  women  owners. 

But  when  we  come  to  the  case  of  an  owner,  not  a  married  wo- 
man, it  is  by  no  means  clear  that  the  same  result  will,  or  should 
be,  reached.  The  seventh  section  provides  that  the  lands  of  such 
other  owner  shall  not  be  liable  to  lien  for  the  erection  of  a  building 
under  a  contract  to  which  he  is  not,  in  fact,  a  party;  unless  he 
consents  in  writing  to  the  erection  thereof.  So  long,  therefore, 
as  he  is  not  the  real  contracting  principal,  and  d'oes  not  consent 
to  the  erection  of  such  building  in  writing,  he  is  in  need  of  no 
protection,  and  neither  he,  nor  his  lands,  can  be  in  anywise  liable 
therefor.  As  he  can  incur  no  liability,  in  such  case,  he  is  ob- 
viously not  the  person  for  whose  benefit  the  statutory  provision 
is  intended.  But  if  he  is,  in  fact,  the  real  contracting  party,  and 
yet  the  contract,  as  filed,  does  not  disclose  the  fact;  why  should  he 
be  able  to  claim  the  benefits  of  the  second  section,  and  thus  cut 
off  the  liens  of  materialmen  and  mechanics,  or  limit  these  claim- 
ants to  such  as  can  give  valid  notice,  under  the  third  section,  if 
they  are  fortunate  enough  to  discover  the  undisclosed  agency  be- 
fore he  has  settled  with  the  builder? 

When  Chief  Justice  Green,  in  Ayres  v.  Revere.  1  Dutch.  474, 
said  that  "one  design  of  requiring  the  contract  to  be  filed  must 
have  been  to  apprize  all  mechanics  and  materialmen  to  what  ex- 
tent the  building  was  exempt  from  liens,  and  how  far  they  must 
look  to  the  responsibility  of  the  builder  alone  for  their  remunera- 
tion," he  was  very  far  from  asserting  that  that  was  the  only  de- 
sign of  that  section.  Another  equally  obvious  design  of  that  re- 
quirement, when  the  third  section  is  read  with  it,  is  to  apprize 
mechanics  and  material  men,  with  certainty,  of  the  person  who 
has  contracted  with  the  builder  to  whom  they  are  supplying  labor 
or  material.  If  this  be  not  so,  why  should  the  statute  require  the 
contract  to  be  filed?  Why  should  not  a  mere  notice  suffice  which 
sliould  put  on  the  record  the  information  that  any  one  supplying 
materials  or  labor  to  the  builder  for  a  certain  building  about  to 
be  erected  by  him  must  look  to  such  builder  only  for  their  com- 
pensation ? 

The  reason  why  the  owner  should  disclose  his  participation  upon 
the  record  is  plain  enough.  It  is  within  his  power  to  make  it 
thus  incontestably  apparent  that  he  is  the  real  principal,  whenever 
that  is,  in  fact,  the  case;  while,  on  the  other  hand,  without  such 
action  on  his  part,  it  will  always  be  burdensome,  and  often  im- 
possible, for  claimants  to  satisfy  themselves,  or  any  one  else,  in 
advance  of  a  verdict,  whether  he  is,  or  is  not,  such  principal. 

Upon  the  decisions  thus  far  there  is.  then,  a  dilemma — Suppose 
a  mechanic  says  I  have  furnished  B.  with  materials  for  a  house 
he  is  erecting  for  C.  under  a  written  contract,  filed.  I  find  that 
A.  actually  owns  the  land,  and  although  I  suspect  that  he  is 
really  the  undisclosed  principal  for  whom  C.  acted  in  making  the 
contract,  I  can  elicit  no  positive  information  from  either  A.  or 
C.  Both  simply  look  pleasant  and  tell  me  that  they  do  not  feel  it 
incumbent  upon  them  to  venture  any  statement  in  the  premises. 
What  shall  I  do? 


Revision  of  1898,  §  2.  41 

Manifestly  the  only  possible  answer  is,  you  had  better  file  a  lien 
claim  against  A.  and  bring  suit  upon  it  and,  at  the  same  time, 
serve  a  stop  notice  on  A.,  and  bring  another  suit  ui)on  that.  You 
will,  of  course,  lose  one  of  your  suits  in  any  event  and  have  to  pay 
costs;  but  no  one  can  tell  which  of  the  two  you  will  lose.  You 
may  also  lose  both  of  them  and  have  to  pay  costs.  That  depends 
upon  whether  A.  is  really  the  undisclosed  principal  or  not.  If 
he  is  not,  you  lose  both  suits.  If  he  is,  then  you  lose  the  lien 
claim  suit  and  win  the  stop  notice  suit,  in  case  the  Court  of  Er- 
rors and  Appeals  says  that  he  is  entitled  to  the  benefit  of  the 
filed  contract;  or  you  win  the  lien  claim  suit  and  lose  the  stop 
notice  suit,  in  case  that  court  says  that  he  is  not  entitled  to  the 
benefit  of  the  filing.  There  is  an  additional  matter  which  makes 
the  whole  situation  most  interesting,  although  your  preoccupations 
as  a  layman  may  prevent  you  from  appreciating  its  charm,  and 
that  is  that  the  court  might  possibly  say  that  the  attitude  of  A. 
and  C.  upon  your  request  for  information,  was  more  polite  than 
virtuous,  that  their  refusal  to  answer  categorically  was  tantamount 
to  a  fraud  upon  you,  and  their  "placid  smile  but  a  wile  of  guile." 
In  that  event,  you  will  lose  the  stop  notice  suit  and  win  the  lien 
claim  suit.  In  such  a  dilemma,  our  mechanic  has  no  one  to  blame 
if  A.  is  not  really  the  principal  party  to  the  building  contract: 
but  the  case  is  quite  otherwise,  if  A.  is  such  principal;  and,  in 
such  case,  it  seems  just  that  he  should  either  disclose  that  fact, 
in  advance  on  the  record,  by  having  the  filed  contract  set  it 
forth,  or  else  be  liable  to  have  his  lands  subjected  to  the  me- 
chajiic's  lien.  The  ground  for  such  a  rule,  suggested  by  Justice 
Dixon,  in  Willetts  v.  Earl,  is,  that  the  second  section  has  no  ap- 
plication where  the  building  contract  is  not  in  writing;  that  the 
contract  cannot  be  said  to  be  in  writing  when  it  omits  to  set 
forth  an  essential  part  of  it;  that  it  does  omit  an  essential  part 
when  it  does  not  disclose  the  real  principal  party  thereto,  and  he 
is  not  disclosed  by  some  other  sufficient  means  (as  is  the  case  with 
niaiTied  women  by  the  statute)  ;  and  that,  therefore,  the  contract 
in  contemplation  of  the  statute  cannot  be  said  to  have  been  filed. 

2.  WHEN  LIABILITY  ACCEUES.  The  liability  to  the  con- 
tractor does  not  accrue  until  the  contract  has  been  performed  ac- 
cording to  its  terms.  Bozarth  v.  Dudley,  15  Vroom  304;  Byrne 
V.  Sisters,  etc.,  16  Vroom  213;  Chism  v.  Schipper,  22  Vroom  1; 
Kirtland  v.  Moore,  13  Stew.  106;  Bradley,  etc..  Co.  v.  Berns,  6 
Dick.  437;  Bemz  v.  Marcus  Sayre  Co.,  7  Dick.  275;  Smith  et  al.  v. 
Dodge  &  BU.<>s  Co..  44  Atl.  E.  639;  Booth  v.  Kiefer,  47  Atl.  E. 
12;  Blauvelt  v.  Fuller.  48  Atl.  E.  538. 

The  contract  is,  however,  so  performed,  so  far  as  relates  to  the 
completion  of  the  building,  when  it  is  substantially  performed. 
The  rule  on  this  subject,  as  established  in  this  State,  may  be  thus 
stated  • 

(a).  The  rule  that  when  a  contract  remains  unperformed,  though 
in  slight  particulars,  no  recovery  can  be  had  either  upon  it  or 
upon  an  implied  contract,  quantum  meruit,  is  modified  in  the  case 
of   a   building   contract   so  as  to   permit   a   recovery  when    there 


42  Mechaxics  Liea^  Law. 

has  been  a  mere  technical,  inadvertent,  or  vuiimportant  devia- 
tion from  its  terms,  but  a  substantial  compliance  with  them.  In 
such  case  a  proper  allowance  or  deduction  from  the  contract  price 
must  be  made  for  the  deficiencies. 

(b).  Where,  however,  there  is  a  substantial  non  performance, 
there  can  be  no  recovery  on  the  contract;  and  there  can  be  no 
recovery,  in  such  a  case,  under  the  common  counts,  for  the  value 
of  so  much  as  may  have  been  accomplished,  unless  the  owner  has 
actually  accepted  such  partial  performance;  and  such  acceptance 
is  not  to  be  presumed  from  the  owner's  i)ossession  and  use,  al- 
though it  may  be  inferred  therefrom  and  from  other  circum- 
stances. 

(c).  Where  a  plaintiff  can  show  substantial  performance,  in 
his  suit  upon  the  express  contract,  he  need  not  show  the  owner's 
acceptance;  but  the  case  is  otherwise  if  his  action  be  upon  the 
common  counts,  as  upon  an  implied  contract. 

These  rules  are  established  by  the  following  decisions:  Bozarth 
V.  Dudley,  supra;  Feeney  v.  Bardsley,  37  Vroom  239;  Dyer  v. 
Lintz,  69  Atl.  908;  Loh  v.  Broadway  By.  Co.,  71  Atl.  112;  Isetts 
V.  Bliwise,  43  Vroom  102. 

DISPUTED  PERFORMANCE.  In  case  there  is  a  dispute  as 
to  whether  the  contract  has  been  performed,  axid  the  owner  and 
builder  submit  the  dispute  to  arbitration,  the  owner's  liability 
cannot  mature  until  the  award  is  madfe.  Booth  v.  Kiefer,  15 
Dick.  57. 

DEVIATIONS  AND  EXTRA  WORK.  Filing  the  contract 
does  not  protect  the  owner  from  liens,  for  work  or  materials,  not 
done  or  furnished  pursuant  to  the  contract;  as  where  the  owner 
himself  employs  mechanics  or  furnishes  materials.  Mechanws, 
etc.,  Co.  V.  Alhertson,  8  C.  E.  Gr.  318;  South  End  Imp.  Co.  v. 
Harden,  52  Atl.  1127;  but  it  is  otherwise  if  the  deviations  and 
extra  work  are  such  as  are  stipulated  for  by  the  contract.  Wil- 
letts  V.  Earl,  24  Vroom  270;   Dunn  v.  Stokern,  16  Stew.  401. 

ABANDONMENT  OF  CONTRACT,  by  owner  and  contractor, 
after  a  claimant  has  furnished  materials  or  labor  pursuant  to  it, 
does  not  give  the  latter  a  lien,  if  the  contract  was  filed,  Willetts 
V.  Earl,  24  Vroom  270;  and  if  the  contract  is  abandoned  by  the 
contractor  under  such  circumstances  as  give  him  no  right  to  re- 
cover any  part  of  the  contract  price,  such  claimant  can  have 
no  remedy,  unless  perhaps  upon  offering  himself  to  complete  the 
contract.  Bernz  v.  Marcus  Sayre  Co.,  7  Dick.  275  (286),  holding 
apparently  otherwise  than  V.  C.  Bird,  in  Bradley  &  Currier  Co.  v. 
Berns,  6  Dick.  437,  but: 

SUBSTITUTED  PAROL  CONTRACT.  If,  after  a  written 
contract  is  filed,  the  owner  and  the  builder  agree  to  abrogate  it, 
and  the  work  is  completed  under  a  substituted  parol  contract,  a  sub- 
contractor, or  other  person  furnishing  labor  or  materials  therefor, 
may  have  a  lien  on  the  land  and  building.  Buckley  v.  Hann, 
39  Vroom  624.  The  jury  foimd,  in  this  case,  that  the  contract 
was  not,  in  fact,  abrogated. 

See  also  notes  to  form  of  building  contract,  post. 


Revision  of  1898,  §  2.  43 

ASSIGNMENTS.  The  contractor  may,  of  course,  assign  the 
moneys  due,  or  to  grow  clue,  to  him  under  the  contract.  An  as- 
signment of  less  than  the  whole  debt  becomes  complete,  at  law, 
only  by  the  acceptance  of  the  debtor;  but  an  unaccepted  assign- 
ment of  part  of  a  debt  is  as  valid  in  equity  as  though  accepted. 
Supt.  V.  Heath,  2  McCart.  22;  Bradley,  etc.,  Co.  v.  Berns,  6  Dick. 
437;    Kirtland  v.  Moore,  13  Stew.  106. 

VALIDITY  OF  ASSIGNMENT.  A  provision  in  a  paving 
contract,  that  if  the  contractor  failed  to  pay  his  employes  or  ma- 
terial men,  the  city  might  forfeit  the  contract  and  apply  the 
moneys  then  earned  by  the  contractor  in  payment  of  such  labor 
and  materials,  does  not  deprive  the  contractor  of  his  right  to  make 
an  assignment,  and  such  assignment,  if  made  before  the  contract 
is  declared  forfeited,  is  good,  to  the  extent  of  the  moneys  earned 
by  the  contractor,  both  as  against  the  city  and  the  creditors  of  the 
contractor.  Shannon  v.  Hohohen,  10  Stew.  123.  So  a  provision 
in  a  building  contract  which  stipulates  that  the  builder  shall  not 
make  an  assignment  without  the  owner's  consent,  and  stipulates 
that  the  latter  may,  on  breach  of  that  stipulation,  terminate  the 
contract,  is  available  only  to  the  owner;  that  is,  an  assignment 
made  in  violation  of  the  contract  is  good  as  to  others,  and,  as 
to  the  owner  himself,  is  voidable  only,  and  the  right  to  treat  it 
as  void  is  waived  by  allowing  the  contractor  to  go  on  with  his 
work.  Burnett  v.  Jersey  City,  4  Stew.  341.  The  same  is  true  if 
the  owners  fails  to  annul  the  contract  within  a  reasonable  time 
after  notice  of  such  assignment,  Turner  v.  Wells,  45  Atl.  R.  641; 
and  in  view  of  §  340,  Gen.  Stats.,  p.  2591,  a  stipulation  for  the 
absolute  non  assignability  of  money  due  or  to  grow  due,  under 
a  written  contract,  is  probably  void.  Turner  v.  Wells,  supra. 
Where  a  contractor  agrees  to  take  two  houses  in  part  payment  on 
final  settlement,  he  may  make  a  valid  agreement  to  convey  such 
houses  before  he  has  finished  his  work.  McPherson  v.  Walton,  15 
Stew.  282.     (This  case  is  a  very  perplexing  one,  as  it  is  reported.) 

FORM  OF  ASSIGNMENT.  An  order,  writing,  or  act  which 
makes  an  appropriation  of  the  fund  is  a  good  equitable  assignment. 
Shannon  v.  Hohohen,  10  Stew,  123;  Lanigan  v.  Bradley,  etc.,  Co., 
5  Dick.  201;  and  it  is  sufiicient  if  the  assignor  presently  strips 
himself  of  his  interest  in  the  fund,  or  some  part  of  it,  although 
the  right  to  immediate  payment  is  not  thereby  conferred  upon 
the  assignee.     Weaver  v.  Atlantic,  etc.,  Co.,  40  Atl.  R.  858. 

EFFECT  OF  ASSIGNMENT  is,  in  equity,  to  put  the  assignee 
in  the  place,  and  on  the  footing,  of  the  assignor;  that  is,  to  sub- 
rogate him  to  the  rights  of  the  latter,  Bernz  v.  Marcns  Sayre  Co., 
7  Dick.  275;  Boaid  of  Education  v.  Duparquet,  5  Dick.  234;  Lani- 
gan V.  Bradley,  etc..  Co.,  5  Dick  201.  In  Board  of  Education  v. 
Duparquet,  it  is  said  that  this  effect  follows  immediately  upon 
the  making  of  the  assignment^  and  before  notice  to  the  debtor, 
the  office  of  presentation,  or  notice,  being  merely  to  prevent  the 
debtor  from  dealing  with  the  assignor  in  good  faith  as  still  the 
beneficiary.  The  able  opinion  of  the  Vice  Chancellor  (Pitney)  re- 
views the  cases  of  Supt.  v.  Heath,  2  McCart.  22;  Shannon  v.  Hoho- 


^^  Mechaxics  Liex  Law. 

ken,  10  Stew.  123;  and  Bank  v.  Bayonne,  3  Dick.  246,  in  which  it 
had  been  intimated  that  an  order,  given  on  any  owner  by  a  builder, 
would  take  effect  from  the  time  of  its  presentation  to  the  owner' 
and  not  from_  the  time  of  its  making,  and  concludes  that  no  such 
rule  was  decided  by  those  cases  (which  seems  clearly  true),  and 
that  it  was  not  really  intended  to  assert  any  such  dictum  (which 
seems  probable).  In  Burnet  v.  Jersey  City,  4  Stew.  341,  it  had 
been  contended  that  an  assignment  of  a  chose  in  action  could 
not  be  complete  (in  the  sense  in  which  equitable  rules  would 
require)  until  notice  had  been  given  to  the  debtor,  but  the  court 
did  not  find  it  necessary  to  decide  whether  that  contention  was 
sound  or  not.  There  seems  to  have  been  no  case,  other  than 
Board  of  Education  v.  Duparquet,  in  which  the  question  has  been 
carefully  considered  or  necessarily  ruled.  In  Donnelly  v.  Johnes, 
44  Atl.  R.  180,  Vice  Chancellor  Grey,  indeed,  says  that  such  or- 
ders are  chargeable  uiwn  the  fund,  "in  the  order  of  their  priority  of 
service;"  and  in  deciding  both  that  case  and  Flaherty  v.  Atlantic 
Lumber  Co.,  44  Atl.  R.  186,  he  very  obviously  marshals  the  orders 
in  accordance  with  the  date  of  their  presentation  to  the  owner. 
So  too,  the  Court  of  Errors,  in  Smith  v.  Dodge  &  Bliss  Co.,  44 
Atl.  R.  639,  makes  the  same  intimation  and  pursues  the  same 
course  in  marshalling  the  orders;  but  it  does  not  appear  that  the 
priorities  as  thus  determined  differed,  in  any  of  these  cases,  from 
what  the  date  of  issuance  of  the  orders  would  have  occasioned; 
nor  is  it  probable,  that  the  question  in  hand  was  then  present  to 
the  mind  of  the  Vice  Chancellor,  or  of  the  Court  of  Errors. 

In  United  States  Co.  v.  Newark,  74  Atl.  192,  Vice  Ch.  Howell 
followed  and  approved  the  doctrine  of  the  Duparquet  case,  hold- 
ing' that  it  was  the  same  doctrine  that  had  been  approved  in  the 
following  cases: 

Kennedy  v.  Parke,  2  C.  E.  Gr.  415;  King  v.  Berry,  2  H.  W. 
Green  44;  Bank  of  Harlem  v.  Bayonne,  3  Dick.  246;  Miller  v. 
Stockton,  35  Vroom  614;    Cogan  v.  Conover  Co.,  3  Rob.  809. 

The  rule,  as  determined  in  Board  of  Education  v.  Duparquet, 
on  the  whole,  seems,  to  be  the  correct  rule;  but  the  matter  may 
be  considered,  perhaps,  as  still  unsettled. 

An  assignment  taken  by  a  creditor,  not  in  payment,  but  only 
to  credit  the  proceeds  when  received,  is  a  mere  power  to  collect 
and  apply,  and  if  such  assignment  is  subsequently  returned  by 
the  assignee  to  the  assignor,  it  then  becomes  cancelled.  South 
End  Imp.  Co.  v.  Harden.  52  Atl./1127. 

ORDERS  TO  GENERAL  CREDITORS  of  the  contractor 
stand  the  same  as  orders  given  to  materiahnen  or  laborers.  Both, 
whether  accepted  or  not  are  equitable  liens  on  the  fund  in  the 
owner's  hands.  McPherson  v.  Walton,  15  Stew.  282;  Supt.  v. 
Heath,   2    McCart.   22. 

AN  ASSIGNMENT  OF  THE  ENTIRE  CONTRACT,  as- 
sented to  by  the  owner,  and  the  subsequent  completion  of  the  work 
by  such  assignee,  does  not  give  to  such  assignee  any  rights  or 
equities  which  the  builder  himself  did  not  have  at  the  time  of 
such  assignment.     Fell  v.  McManus,  1  Atl.  747.     Compare,  Si. 


Revtsiox  of  1898,  §  2.  45 

Peter's  Church  v.  Van  Note,  21  Dick.  78;  Evans  v.  Lower,  1  Kob 
232. 

PRIOKITY.  See  post,  under  §  6,  for  the  cases  on  the  respec- 
tive priority  of  orders  and  stop  notices. 

3.  FILING  PLANS  AND  SPECIFICATIONS.  The  cases  on 
this  subject  are:  Ayres  v.  Revere,  1  Dutch.  474;  Bahhitt  v.  Con- 
don, 3  Dutch.  1.54;  Budd  v.  Lucky,  4  Dutch.  484;  Hill  v.  Carlisle, 
14  N.  J.  L.  J.  114;  Neill  v.  Watson,  15  N.  J.  L.  J.  138;  Pimlott 
v.  Hall,  26  Vroom  192;  Freedman  v.  Sandknop,  8  Dick.  243;  La- 
Foucherie  v.  Knutzen,  29  Vroom  234,  decided  before  the  amend- 
ment of  1895,  and  the  following  since  decided:  Weaver  v.  At- 
lantic, etc.,  Co.,  12  Dick  547;  Murphy,  etc.,  Co.  v.  Nicholas,  37 
Vroom  414;  English  v.  Warren,  20  Dick.  30;  Campbell  Morrell 
Go.  V.  Lehocky,  73  Atl.  515. 

In  Ayres  v.  Revere.  Chief  Justice  Green,  premising  that  "one 
design  of  requiring  the  contract  to  be  filed  must  have  been  to 
apprise  all  mechanics  and  materialmen  to  what  extent  the  build- 
ing was  exempt  from  liens  and  how  far  they  must  look  to  the 
responsibility  of  the  builder  alone  for  remuneration,"  held  that 
the  contract  was  not  duly  filed,  because  the  contract  stated  that 
the  builder  was  to  do  only  a  part  of  the  work  and  furnish  only 
a  part  of  the  materials  mentioned  in  the  si)ecifications,  and  the 
specifications  themselves,  which  were  essential  to  determine  what 
such  part  was,  had  not  been  filed.  It  was  also  noted  that  the  con- 
tract in  that  case  expressly  made  the  specifications  a  part  of  it. 
In  Bahhitt  v.  Condon,  the  contract  being  to  do  all  the  work 
and  furnish  all  the  material,  it  was  said  that  in  such  case 
the  specifications  formed  no  essential  part  of  the  contract 
with  respect  to  its  filing.  The  decision  in  this  case  was 
rested,  also,  on  other  grounds,  which  made  it  unnecessary  to 
decide  upon  this  question.  In  Budd  v.  Lucky,  it  was  expressly 
decided  that  the  specifications  did  not  need  to  be  filed  when  the 
contract  was  to  do  all  the  work  and  furnish  all  the  material;  and 
it  was,  in  effect,  considered  that,  to  give  notice  of  whether  the 
material  or  work  in  contemplation  was  within  or  without  the 
contract,  was  the  only  purpose  of  the  statutory  requirement  that  it 
be  filed.  In  Hill  v.  Carlisle,  and  Pimlott  v.  Hall,  the  contract  was 
partial,  and  it  was  held  fatal  that  the  specifications  were  not  filed, 
following  Ayres  v.  Revere.  In  Neill  v.  Watson,  the  contract  being 
total,  the  failure  to  file  the  specifications  was  held  of  no  conse- 
quence, and  the  same  was  held  in  Freedman  v.  Sandknop  and 
La  Foucherie  v.  Knutzen,  following  Budd  v.  Lucky.  Then  came 
the  amendment  of  1895,  following  which,  in  Weaver  v.  Atlantic, 
etc.,  Co.,  it  was  decided  that  the  failure  to  file  the  specifications 
was  fatal,  the  contract  there  in  question  being  similar  to  a  partial 
contract.  In  the  next  case,  Murphy,  etc.,  Co.  v.  Nicholas,  it  was 
intimated  that  the  rule  adopted  in  Budd  v.  Lticky  had  been  a  piece 
of  judicial  legislation,  rather  than  of  rational  interpretation ;  and 
doubts  were  expressed  whether  the  specifications  could  ever  have 
been  properly  dispensed  with  when  the  contract  expressly  made 
them  a  part  of  it.       It  was  also  intimated  that  the  amendment  of 


46  Mechanics  Lien  Law. 

1895  evinced  a  legislative  intent  that  the  document  filed  should 
show  a  complete  contract.  This  latter  intimation  might  have 
afforded  some  support  for  the  contention  that  the  whole  legislative 
design  of  section  2,  as  amended  in  1895,  w-as  broader  than  the  pur- 
pose mentioned  in  Ayres  v.  Revere,  as  originally  one  of  its  designs, 
and  that  the  purpose  of  the  statute  also  is  that  the  contract  should 
be  so  completely  filed  as  to  apprise  mechanics  and  materialmen 
of  all  the  details  necessary  to  enable  them  to  ascertain  with  cer- 
tainty the  scope  of  the  work  which  the  builder  has  undertaken,  and 
so  that  they  may  have,  of  record,  the  means  of  estimating  whether 
the  work  is  likely  to  be  carried  out  and  completed  for  the  contract 
price  or  not.  It  might  have  been  found  that  such  was  the  reason 
which  led  the  legislature  to  require  the  "specifications"  to  be  filed 
in  every  instance,  whether  they  were,  or  were  not,  essential  "to 
apprise  mechanics  or  materialmen  to  what  extent  the  building  was 
exempt  from  liens,  and  how  far  they  must  look  to  the  responsi- 
bility of  the  builder  alone  for  remuneration."  That  it  is  neces- 
sary to  file  the  "specifications"  in  every  case,  since  the  amendment 
of  1895,  was  decided  in  English  v.  Warren,  and  to  that  extent,  the 
old  rxile  of  constiniction  was  abrogated  by  the  amendment.  Why 
that  should  have  been  done  is  clear  enough  upon  the  hypothesis 
above  suggested;  but,  on  the  contrary  hypothesis,  that  the  legisla- 
ture did  not  intend  to  enlarge  the  design  of  the  requirement  as  to 
filing  the  contract,  it  imposed  an  additional  burden  on  the  land 
owner,  without  intending  any  resulting  advantage  to  any  one  else. 
In  view  of  these  considerations,  and  the  course  of  decision  on  the 
subject,  it  might  have  been  thought  that  the  present  requirement, 
that  the  specifications  must  be  filed  in  every  case,  should  be  con- 
strued so  as  to  make  the  term,  "specifications,"  include  all  the  par- 
ticulars as  to  the  dimensions  of  the  worJc,  as  well  as  the  particu- 
lars as  to  materials,  qualities,  workmanship  and  the  like,  which 
have,  in  fact,  been  agreed  upon  and  specified  between  the  parties. 
Such  a  construction  would  have  made  the  drawings,  or  plans, 
as  essential  a  part  of  the  "specifications"  as  is  the  written  or 
printed  enmneration  of  particulars,  and  would  have  done  no  vio- 
lence to  the  term,  specifications.  For,  manifestly,  a  specification 
is  to  be  defined  as  the  designation  of  a  partictdar,  and  a  drawing 
or  plan  which  furnishes  the  dimensions  of  the  work,  and  of  its 
various  parts,  is  surely  such  a  designation,  and  is  usually,  if  not 
always,  the  only  thing  which  does  furnish  a  designation  of  those 
particulars.  The  term,  "specifications,"  is  an  apt  term  to  include 
all  usual  methods  of  designating  or  describing  particulars,  and 
includes  drawings  or  plans  just  as  much  as  it  does  writings.  It  is 
also  to  be  noted  that  in  very  many  cases  the  contract,  or  the  writ- 
ten specifications,  or  both,  recite,  in  express  words,  that  the  plans 
or  drawings  are  part  of  the  specifications,  and  very  often  that  they 
are  a  controlling  part.  Without  any  such  recital  they  are,  in  fact, 
an  indispensable  part  thereof. 

But  Dis  aliter  visum  est,  the  Court  of  Errors  and  Appeals,  in 
Camphell  &  Morrell  Co.  v.  Lehocky.  has  given  a  much  more 
restricted  meaning  to  the  statutory  term,  specifications,  holding 


Revision  of  1898,  §  2.  47 

that  it  does  not  include  the  drawings  or  plans,  and  that  the  amend- 
ment of  1895,  therefore,  under  the  maxim,  Expressio  unius  est 
vxc'iiisio  aUerius,  indicates  conclusively  that  while  the  written 
specifications  must  be  filed  in  every  case,  the  plans  or  drawings 
need  not  be.  The  report  of  this  case  does  not  show  whether  the 
plans  or  drawings  were  there  expressly  made  a  part  of  the  specifi- 
cations, although  it  is  probable  that  they  were.  Perhaps  it  is 
henceforth  immaterial  on  this  question  what  the  fact,  in  that 
respect,  may  be.  There  may  still,  however,  be  a  doubt  as  to  this 
when  the  contract  is  partial  and  the  specifications,  without  the 
plans,  do  not  suflSce  to  show  what  is,  and  what  is  not,  within  such 
contract,  see  Weaver  v.  Atlantic,  etc.,  Co.,  12  Dick.  547,  at  p.  551. 

Careful  practitioners  will,  we  think,  continue  to  advise  owners 
that  the  drawings  or  plans  be  filed  with  the  contract  and  the  writ- 
ten specifications. 

The  foregoing  note  was  prepared  before  the  enactment  of  the 
act  of  1910,  p.  472,  which  reads  as  follows: 

Whenever  any  building  shall  be  erected  in  whole  or  in 
part  by  contract  in  writing,  such  building  and  the  land 
whereon  it  stands  shall  be  liable  to  the  contractor  alone  for 
work  done  or  materials  furnished  in  pursuance  of  such  con- 
tract; provided,  said  contract,  or  a  duplicate  thereof,  to- 
gether with  the  specifications  accompanying  the  same,  or  a 
copy  or  copies  thereof,  be  filed  in  the  office  of  the  clerk  of 
the  county  in  which  such  building  is  situate  before  such 
work  done  or  materials  furnished;  provided  further,  that  it 
shall  not  be  necessary  to  file  the  plans  for  such  building  in 
said  clerk's  office,  whether  such  plans  are  referred  to  in  said 
contract  or  not. 

This  amendment  seems  to  set  at  rest  any  question  as  to  filing 
the  plans,  but  it  has  been  thought  best  to  let  the  above  note  stand, 
inasmuch  as  it  may  be  useful  as  an  historical  resume  of  the  course 
of  legislation  and  the  decisions  upon  the  subject. 

CONVEYANCE  BY  OWNER  TO  CONTRACTOR.  If  the 
contract  is  filed,  a  conveyance  of  the  land  and  building,  after  its 
completion,  by  the  owner  to  the  contractor,  if  hona  fide,  will  not 
give  a  laborer  or  material  man  a  lien,  Scudder  v.  Harden,  ^^  Stew. 
503 ;  but  it  is  otherwise  if  the  builder  was,  during  all  the  time,  the 
real  owner;  see  Young  v.  Wilson,  15  Vroom  161. 

4.  Filing  the  contract  operates  to  protect  from  liens  for  mate- 
rials or  labor  furnished  or  performed  after  the  date  of  filing ;  that 
is,  the  contract  need  not  be  filed  before  any  work  is  begim,  but, 
if  it  is  not  filed  until  after  that  time,  will  let  in  a  lien  for  any- 
thing done  before  it  is  filed  and  be  a  protection  as  to  the  remain- 
der. Mechanics,  etc.,  Assn.  v.  Albertson,  8  C.  E.  Gr.  318;  La 
Foucherie  v.  Knufzen,  29  Vroom  234.  For  a  time  (1892-1895), 
owing  to  the  act  of  1892,  p.  358,  it  was  necessary  to  file  the  con- 
tract before  any  work  was  begun  or  materials  were  furnished.  La 


48  Mechanics  Lien  Law. 

Foucherie  v.  Knutzen,  29  Vroom  234;    but  the  statute  -which  pro- 
duced this  result  was  repealed  in  1895. 

The  work  done  or  materials  furnished,  before  which  the  contract 
is  to  be  filed,  are  such  as  are  to  be  done  or  furnished  under  the 
contract.  So,  where  the  owner  was,  himself,  to  build  the  founda- 
tion, and  contracted  only  for  the  superstructure,  a  claimant,  who 
furnished  work  or  materials  for  the  superstructure,  after  the  con- 
tract was  filed,  cannot  have  a  lien,  although  the  contract  was  exe- 
cuted before  the  foundation  was  completed.  Budd  v.  Lucky,  4 
Dutch.  484. 

Recourse  of  employe  or  materialman  against  the  contract 
price,  on  the  contractor's  failure  to  pay,  after  demand,  re- 
fusal and  notice. 

3.  Whenever   any   master   workman   or   contractor   sliall, 
\       upon  demand,  refuse  to  pay  any  person  who  may  have  fur- 
H)  nished  him  materials  used  in  the  erection  of  any  such  house 

or  other  building,  or  any  siib-contractor,  journeyman  or  la- 
borer employed  by  him  in  erecting  or  constructing  any  build- 
ing, the  money  or  wages  due  to  him,^  it  shall  be  the  duty  of 
such  journeyman,  laborer,  materialman  or  suh-conttnctor  to 
give  notice  in  writing  to  the  owner  or  owners  of  such  build- 
ing of  such  refusal,  and  of  the  amount  due  to  him  or  them 
and  so  demanded,^  and  the  owner  or  owners  of  such  building 
shall  thereuix)n  be  authorized  to  retain  the  amount  so  due 
and  claimed  by  any  such  journeyman,  laborer,  materialman 
or  suh-contra^tor  out  of  the  amount  owing  by  him  or  them  on 
the  contract  or  that  may  thereafter  become  due  ^  from  him 
or  them  on  such  contract  for  labor  or  materials  used  in  the 
erection  of  such  building,^  giving  the  master  workman  or 
contractor  written  notice  of  such  notice  and  demand ;  and 
if  the  same  be  not  paid  or  settled  by  said  master  workman 
or  contractor,  such  owner  or  owners,  on  being  satisfied  of 
the  correctness  of  such  demand,  shall  pay  the  same,  and  the 
receipt  of  such  journeyman,  laborer,  materialman  or  sub- 
contractoT  for  the  same  shall  entitle  such  owner  or  owners 
to  an  allowance  therefor  in  the  settlement  of  accounts  between 
him  and  such  master  workman  or  contractor,  or  his  represen- 
tatives or  assigns,  as  so  much  paid  on  account.*^ 

1905,  p.  Sll,  §  1;    1898,  p.  5S8,  §  3;  1853,  p.  437,  §  S; 
1863,  p.  215,  §  2;   Rev.  1874,  §  3;   1895,  p.  313.  §  2. 

The  text  above  given  is  the  section  as  amended  by  the  Act  of 
1905,  which  changed  the  section  by  adding  the  italicized  words  and 


Revision  of  1898,  §  3.  49 

omitting  the  definite  article  in  one  place.  The  insertion  of  the 
word,  him,  is  significant,  as  is  below,  in  note  1,  noted.  It  is  de- 
sirable, in  many  cases,  to  consider  the  various  changes  that  have 
been  made  in  this  section,  since  it  first  was  enacted  as  §  3  of  the 
Act  of  1835.  To  facilitate  such  an  examination,  we  give  in  par- 
allel columns  the  several  enactments,  omitting  only  that  of  the 
Kevised  Statutes  of  1847,  which  copied  the  language  of  the  Act 
of  1835,  with  no  significant  variation;  unless  the  change  from, 
master  or  workman,  to  master  workman,  miglit  be  thought  such. 

4 


50 


Mechanics  Lien  Law, 


1835,  p.  llfS,  §  3. 
Whenever    any     master 
or     workman    shall    re- 
fuse to  pay  to  any  jour- 
neyman or  laborer,  em- 
ployed  by    him,    in    the 
erection  or  constructing 
any      house      or     other 
■building,   his   Tvages,    it 
shall    be    the    duty    of 
such  journeyman  or  la- 
borer, to  give  notice,  in 
writing,  to  the  owner  or 
owners   of    such   hou(se 
or     other     building,     of 
such     refusal,     ond   the 
amount     due     him     or 
them,  and  so  demanded, 
and   the   said   owner   or 
owners   shall   thereupon 
be   authorized  to  retain 
the  amount  so  due  and 
claimed,    by    any    such 
journeyman    and    labor- 
er,  out   of   the    amount 
due  by  him  or  them  to 
such    master    workman, 
and  give  notice  to  such 
master      workman      of 
such  notice  and  demand, 
and    if    not    liquidated 
and  paid  by  such  mas- 
ter      workman,       such 
owner     or     owners,     on 
being    satisfied    of    the 
correctness  of  such  de- 
mand,    shall    pay     the 
same;     and    the   receipt 
of      such      joumeyraan 
and      laborer      for     the 
same,    shall   be   a    suffi- 
cient  offset   in   the   set- 
tlement of  the  accounts 
between  such   owner  or 
owners  of  any  honse  or 
other  building,  and  such 
master  workman. 


1S53,  p.  m,  §  3. 
Whenever    any     master 
workman   or   contractor 
shall,    upon    demand,  re- 
fuse  to  pay  ani/  person 
icho   may  have  furnished 
—  —  materials    used    in 
the  erection  of  any  such 
house  or    other    building, 
or  any    journeyman    or 
labored      employed      by 
bim   in   the   erecting   or 
eonstructmg   any   build- 
ing, the  money  or  wages 
due  to  him,   it  shall  be 
the  duty   of   such  jour- 
neyman   or    laborer    to 
give  notice  in  writing  to 
the  owner  or  owners  of 
such    building    of    such 
refusal,      and      of      the 
amount  due  to    him    or 
them  and  so  demanded, 
and  the  owner  or  own- 
ers    of     such      building. 
shall    thereupon   be   au- 
thorized   to    retain    the 
amount      so      due     and 
claimed    by     any     such 
journeyman     or    laborer 
out   of  the   amount  ojc- 
ing  by  him  or  them  to 
such  masterworkman  or 
contractor,      giving     him 
written  notice    of    such 
notice  and  demand;  and 
if  the  same  be  not  paid 
or  settled   by  said  mas- 
terworkman   or  contrac- 
tor such  owner  or  own- 
ers,   on    being    satisfied 
of     the    correctness    of 
such  demand,  shall  pay 
the   same,   and    the    re- 
ceipt   of    such    journey- 
man or  laborer  for  the 
same,    shall   entitle   such 
owner  or  owners  to  an  al- 
lowance   therefor,  in    the 
settlement    of    accounts 
between  him    and   such 
masterworkman    or  con- 
tractor as  so  much  paid 
on  account. 


IS63,  p.  275,  §  2. 
Rev.,  p.  668,  §  3. 
Whenever    any   master- 
workman    or   contractor 
shall,  upon  demand,  re- 
fuse to  pay  any  person 
who  may  hare  furnish- 
ed   —    —    —    materials 
used   in   the  erection  of 
any  such  house  or  other 
buildmg,    or    any    jour- 
neyman  or   laborer  em- 
ployed   by   him    in    the 
erecting  or  constructing 
any  building,  the  money 
or  wages  due  to  him,  it 
shall    be    the    duty    of 
such  journeyman  or  la- 
borer,    or    materialman, 
fo  give  notice  in  writing 
to  the  owner  or  owners 
of  such  building  of  such 
refusal,      and     of     the 
amount   due    to   him  or 
them  and  so  demanded, 
and   the  owner  or  own- 
ers    of    such     building 
shall    thereupon    be   au- 
thorized   to    retam    the 
amount     so     due,     and 
claimed     by     any     .such 
journeyman,  laborer,    or 
materialman,  out   of  the 
amount    owing    by    him 
or  them  to  such  master- 
workman  or  contractor, 
giving  him    WTitten   no- 
tice of  such  notice   and 
demand;      and     if      the 
same  be  not  paid  or  set- 
tled by  said  masterwork- 
man or  contractor,  such 
owner    or    owners,     on 
being    satisfied    of     the 
correctness  of  such   de- 
'mand.     shall    pay      the 
same,    flnd    the    receipt 
of  such  journeyman,  la- 
borer, or  materialman  for 
the  same,    shall    entitle 
such    owner   or    owners 
to  an    allowance    tbere- 
for,  in  the  settlement  of 
accounts    between    him 
and     such    masterwork- 
man   or    contractor,    as 
ISO    much    paid    on   ac- 
count. 


R  EVisioN  OF  1808,  §  3. 


51 


1895,  p.  313,  §  2. 
Wlienevei'  any  jnaster- 
•worfcmau  or  contractor 
shall;  uiwn  demand,  re- 
fuse to  pay  any  person 
who  may  have  furnish- 
ed —  —  —  materials 
used  in  the  erection  of 
any  euch  house  or  other 
building,  ior  any  jour- 
neyman or  laborer  em- 
ployed by  him  in  the 
erecting  or  constructing 
eny  building,  the  money 
or  wages  due  to  him,  it 
shall  be  the  duty  of 
such  journeyman  or  la- 
borer or  materialman  to 
give  notice  in  writing  to 
the  owner  or  owners  of 
6uch  building  of  such  re- 
fusal, and  of  the  amount 
dne  to  him  or  them  and 
so  demanded,  and  the 
OAvner  or  owners  of 
such  building  shall 
thereupon  be  authorized 
to  retain  the  amount  so 
due  and  claimed  by  any 
such  journeyman,  labor- 
er or  materialman  out  of 
the  amount  owing  by 
him  or  them  to  such 
masterworkman  or  con- 
tractor, or  that  may 
thereafter  become  due 
from  him  or  them  to  nuch 
masterworkman  or  con 
tractor  for  labor  or  ma 
terials  used  in  the  erec- 
tion of  such  building,  s"iv 
ing  him  written  notice 
of  such  notice  aud  de- 
mand; flud  if  the  same 
be  not  paid  or  tsettled 
by  said  masterworkman 
or  contractor,  such  own- 
er or  owners  on  being 
satisfied  of  the  correct- 
ness of  said  detnand 
shall  pay  the  same,  aud 
the  receipt  of  such  jour- 
neyman, laborer  or  ma- 
terialman for  the  same 
•shall  entitle  such  owner 
or  owners  to  au  allow- 
ance therefor  in  the  set- 
tlement of  accounts  be- 
tween him  and  such 
masterworkman  or  con- 
tractor a«  so  much  paid 
on  account. 


I  1898,  p.  538,  §  3. 
,AVhenever  any  master- 
, workman  or  contractor 
ehall,  upon  demand,  re- 
fuse to  pay  any  person 
who  may  have  furnish- 
ed —  —  —  materials 
used  in  the  erection  of 
any  such  house  or  other 
building,  or  any  journey- 
man or  Jaborer  employ- 
ed by  him  in  the  erect- 
ing or  constructing  any 
building,  the  money  or 
wages  due  to  him,  it 
shall  be  the  duty  of 
isuch  journeyman  or  la- 
borer or  materialman 
to  give  notice  in  writ- 
ing to  the  owner  or 
owners  of  such  build- 
ing of  such  refusal,  and 
of  the  amount  due  to 
him  or  them  and  so  de- 
manded, and  the  owner 
or  owners  of  such  build- 
ing shall  thereupon  be 
authorized  to  retain  the 
amount  so  due  and 
claimed  by  any  such 
journeyman,  laborer  or 
materialman  out  of  the 
amount  owing  by  him 
or  them  on  the  con- 
tract, or  that  may  there- 
after become  due  from 
him  or  them  on  such 
contract  for  labor  or 
materials  Tised  in  the 
erection  of  such  build- 
ing, giving  the  master- 
workman  or  contractor 
written  notice  and  de- 
mand; and  if  the  same 
be  not  paid  or  settled 
by  said  masterworkman 
or  contractor,  such  own- 
er or  owners,  on  being 
satisfied  of  the  cori-ect- 
ness  of  said  demand, 
shall  pay  the  same,  and 
the  receipt  of  such 
jonnieyman,  laborer  or 
materialman  for  the 
same  shall  entitle  such 
owner  or  owners  to  an 
allowance  therefor  in 
the  settlement  of  ac- 
connts  between  him  and 
such  masterworkman  or 
contractor,  or  his  rep- 
resrntatives  or  assigns,  as 
so  much  paid  on  ac- 
count. 


1905,  p.  HI,  §  1. 
Whenever  any  master- 
workman  or  contractor 
'shall,  upon  demand,  re- 
fuse to  pay  any  person 
jWho  may  have  furnish- 
ed him  materials  used 
in  the  erection  of  any 
such  house  or  otheo 
{building,  or  any  sub- 
contractor, journeyman 
[or   laborer  employed  by 

him  in erecting 

or  constructing  any 
building,  the  mou<'y  or 
wages  <lue  to  him,  it 
shall  be  the  duty  of 
such  journeyman,  labor- 
er, materialman,  or  sub- 
c^jntructor  to  give  notice 
|m  writing  to  the  own- 
er or  owners  of  such 
Ibuilding  of  such  re- 
Ifusal.  and  of  the 
amount  due  to  him  or 
them  and  so  demanded* 
and  the  owner  of  own- 
ers of  such  building 
shall  thereupon  be  au- 
thorized to  retain  the 
amount  iso  clue  and 
claimed  by  any  such 
journeyman, 
materialman 


tractor 
amount 
or  them 
or  that 
become 
or    them 


laborer, 
or  sub-con- 
out  of  the 
owing  by  him 
on  tiie  contract 
may  thereafter 
due  from  him 
on    such    con- 


tract for  labor  or  mate- 
rials used  in  the  erec- 
tion of  such  building, 
giving  the  masterwork- 
man or  contractor  writ- 
ten notice  of  such  no- 
tice aud  demand;  and 
if  the  same  be  not  paid, 
or  settled  by  said  mas- 
terworkman or  contrac- 
tor, such  owner  or  own- 
ers, im  being  satisfied 
of  the  fMirrectness  of 
said  d<'mand.  shall  pay 
the  same,  and  the  re- 
ceipt of  such  journey- 
man, laborer,  material- 
man or  siib-contracior 
for  the  same  shall  enti- 
tle such  owner  or  own- 
ers to  an  allowance 
itlwji-efor  .in  the  settte- 
ment  of  accounts  be- 
tween him  aud  such 
masterworkman  or  con- 
tractor, or  his  represen- 
tatives ov  aissigns.  as 
so  much  paid  on  ac- 
count. 


52  Mechanics  Lien  Law. 

By  the  act  of  April  12th,  1910  (p.  500),  this  third  section  was 
amended  to  read  as  follows,  the  only  material  change  thereby 
made  being  the  addition  of  the  words  which  we  have  italicised: 

Whenever  any  masterworkman  or  contractor  shall,  upon  de- 
mand, refuse  to  pay  any  person  who  may  have  furnished  him 
materials  used  in  the  erection  of  anv  such  house  or  other 
building,  or  any  sub-contractor,  journeyman  or  laborer  em- 
ployed by  him  in  erecting  or  constructing  any  building,  the 
money  or  wages  due  to  him,  it  shall  be  the  duty  of  such  jour- 
neyman, laborer,  materialman  or  sub-contractor  to  give  notice 
in  writing  to  the  owner  or  owners  of  such  building  of  such 
refusal,  and  of  the  amount  due  to  him  or  them  and  so  de- 
manded, specifymg  said  amount  as  nearly  as  possible,  and 
the  owmer  or  owners  of  such  building  shall  thereupon  be 
authorized  to  retain   the  amount  so  due   and   claimed   by 

( )   such  journeyman,  laborer,  materialman,  or 

sub-contractor  out  of  the  amount  owing  by  him  or  them  on 
the  contract  or  that  thereafter  may  become  due  from  him  or 
them  on  such  contract  for  labor  or  materials  used  in  the  erec- 
tion of  such  building,  giving  the  masterworkman  or  contractor 
written  notice  of  such  notice  and  demand,  and  if  the  same  be 
not  paid  or  settled  by  said  masterworkman  or  contractor,  such 
owner  or  owners,  on  being  satisfied  of  the  correctness  of  said 
demand,  shall  pay  the  same,  and  the  receipt  of  such  journey- 
man, laborer,  materialman  or  sub-contractor  for  the  same 
shall  entitle  such  owner  or  owners  to  an  allowance  therefor 
in  the  settlement  of  accounts  between  him  and  such  master- 
workman  or  contractor,  or  his  representatives  or  assigns,  as 
so  much  paid  on  account. 

PRIORITIES  AS  BETWEEN  ORDERS  AND  STOP  NO- 
TICES, see  post  §  5. 

PRIORITIES  AS  BETWEEN  SUCCESSIVE  STOP  NO- 
TICES, see  post,  §  5. 

CONSTRUCTION  OF  THE  SECTION.  It  is  said  by  the 
Court  of  Errors  and  Appeals  in  McNah,  etc.,  Co.  v.  Paterson,  etc., 
Co.,  2  Buch.  929;  s.  c.  1  Buch.  133:  "There  is  no  reason  for  a 
strict  construction  of  the  provisions  of  this  section  (against  the 
claimant  and  in  favor  of  the  owner  of  the  land),  beyond  the  in- 
convenience to  which  the  owner  is  put  by  making  inquiry  into 
the  correctness  of  the  claims  served  upon  him."  "In  our  opinion 
no  such  strict  construction  should  be  given  to  the  provisions  of 
the  third  section."  This  does  not  mean,  we  take  it,  that  the  section 
can  be  construed  liberally  in  favor  of  a  claimant,  or  otherwise 
than  in   accordance  with   the   "plain   and  usual  meaning  of  ita 


Eevisiox  of  1898,  §  3,  Xote  1. 


oo 


■words  read  in  the  light  of  its  obvious  design  and  clear  require- 
ments." See  note  2,  under  the  title  of  th©  act.  See  also  Supt. 
V.  Heath,  2  McCart.  22,  in  which  Chancellor  Green  said:  "It 
must  be  borne  in  mind  that  the  statutory  remedy  must  be  strictly 
pursued;  that  the  statute  alters  the  existing  law  so  far,  and  no 
furher,  than  its  terms  require,  and  that  it  cannot  be  extended  by 
construction." 

1.  WHO  MAY  BE  A  CLAIMANT.  Only  a  creditor  of  the 
huilder  can  have  the  remedy  provided  by  this  section,-  it  is  not 
given  to  those  who  supply  the  builder's  sub-contractor,  or  em- 
ploye, with  labor  or  materials  or  both. 

This  was  correctly  said,  by  Vice  Chancellor  Van  Fleet,  in  Kirt- 
land  V.  Moore,  13  Stew.  106,  to  be  the  plain  direction  of  the 
statute;  although  it  does  not  appear  that  it  was  necessary  to  so 
hold  in  that  case.  In  Carlisle  v.  Knapp,  22  Vroom  329,  however, 
the  question  was  definitely  presented  to  the  Court  of  Errors  and 
Appeals  and  decided. 

The  sufficient  reason  for  the  decision,  as  was  there  intimated, 
is  because  the  third  section  plainly  gives  its  remedy  only  when 
the  builder  refuses,  upon  demand,  to  pay  any  person,  material- 
man or  otherwise,  the  money  or  wages  due  to  him;  and  this  lan- 
guage necessarily  implies  that  such  claimant  must  be  one  who 
is  legally  entitled  to  make  such  a  demand  upon  the  builder,  as 
the  debtor  from  whom  his  money  or  wages  are  due,  and  mani- 
ifests  that  the  legislative  intention  was  that  "the  remedy  pro- 
vided by  the  third  section  is  to  extend  only  to  creditors  of  the 
contractor  with  the  owner"  (the  builder).  Eeviewing  the  pre- 
vious course  of  legislation,  whereby  this  remedy,  originally  given 
by  the  act  of  1835  to  such  mechanics  as  were  employes  of  the 
builder,  and  hence  always  his  creditors,  was  extended,  by  the 
Revision  of  1874  (following  the  act  of  1863,  p.  275),  after  the 
abortive  attempt  in  that  direction  in  the  act  of  1853,  to  "persons 
who  may  have  furnished  materials  used  in  the  erection  of  any 
such  house  or  other  building,"  it  was  concluded  that  the  gen- 
erality of  those  words,  in  legislation  originating  so  loosely,  could 
not  defeat  the  obvious  intention,  elsewhere  manifested  in  the 
section  and  above  noted ;  and  that  the  words,  "to  such  contractor," 
must  be  read  into  the  section  after  the  words,  "may  have  fur- 
nished." It  may  be  noted  here  that  the  amendment  of  1905 
adopts  this  reading,  in  effect,  by  the  more  economical  insertion  of 
the  word,  "him,"  instead  of  the  words  suggested  by  the  Court  of 
Errors  and  Appeals.  That  the  decision  in  Carlisle  v.  Knapp,  was 
perfectly  sound,  is  apparent,  not  merely  by  this  legislative  adop- 
tion of  the  result;  but  because,  in  addition  to  what  has  already 
been  noted,  the  section,  as  was  there  intimated,  contemplates  that 
the  debt  due  the  claimant  shall  be  one  which,  when  paid  by  the 
owner,  shall  entitle  the  latter,  without  the  builder's  assent,  to 
offset  (this  is  the  exact  term  of  the  original  act,  it  will  be  noted) 
against  such  builder,  in  the  settlement  of  the  accounts  between 
them :    and  this  would  be  a  most  startling,  if  not  legally  impos- 


=54  Mechakics  Liex  Law. 

sibk,  thing,  if  the  debt  so  paid  to  such  claimant  were  not  a  debt 
due  to  him  from  such  builder.  Carlisle  v.  Knapp,  to  the  point 
here  in  question,  has  been  cited  and  followed  or  approved  in 
Bruce  v.  Pearsall,  30  Vroom  62;  Building  and  Loan  Assn.  v. 
Williams,  12  Dick.  503;  Brennan  v.  Industrial,  etc.,  Assn.,  17  N. 
J.  L.  J.  204;  Gardn-er  &  Meehs  Co.  v.  N.  Y.,  etc.,  R.  R.,  43  Vroom 
257;  Fehling  v.  Goings,  1  Rob.  375;  Beckhard  v.  Rudolph,  2 
Eob.  740. 

(&.) 

A  GENERAL  CREDITOR  OF  THE  BUILDER  for  moneys 
loaned  to  him,  although  to  enable  him  to  carry  out  his  contract 
with  the  owner,  cannot  have  the  benefit  of  this  section,  Williams 
V.  Bradford,  21  Atl.  331  (Grey,  V.  G.) ;  Evans  v.  Loiver,  1  Rob. 
232;  so  also  a  claim  for  tools  supplied  the  builder  is  invalid, 
Evans  V.  Lower,  supra. 

(c.) 

The  ASSIGNEE  OF  A  CLAIMANT,  who  might  himself  give 
notice  (having  an  inchoate  lien),  may,  perhaps,  give  notice;  but 
should  probably  do  so  in  the  name  of  the  assignor  for  his,  the 
assignee's,  benefit.  See  note  to  §  1,  assignability  of  lien  claim; 
and  South  End  Co.  v.  Harden,  52  Atl.  1127. 

id.) 
SUB-CONTRACTORS.  As  the  third  section  stood  before 
the  amendment  of  1905,  it  was  held,  in  Beckhard  v.  Rudolph,  2 
Rob.  740;  reversing  the  contrary  view  of  V.  C.  Stevenson,  in 
s.  c,  2  Id,  315;  that  an  employe  or  a  sub-contractor  of  the 
builder,  who  furnishes  the  latter  with  materials,  and  the  labor 
of  himself  or  servants,  necessary  to  instal  such  materials  in  situ, 
can  have  the  remedy  by  stop  notice  for  the  price  of  all  that  he 
has  so  furnished.  The  view  of  the  Vice  Chancellor  was  that  the 
statute  was  not  to  be  construed  liberally  in  favor  of  the  claimant 
and  against  the  owner,  but  vice  versa;  and  that  sucli  claimant 
was  neither  a  laborer  nor  journeyman,  employed  by  the  builder, 
nor  a  person  who  furnished  him  materials,  so  far  as  the  labor 
and  work  of  installing  them  in  situ  was  concerned.  By  way  of 
illustration,  he  instanced  the  case  of  a  sub-contractor  who  should 
furnish  labor  only,  as  in  the  case  of  a  mere  pun^eyor  of  labor, 
an  engineer  contracting  to  make  measurements  and  set  stakes 
for  the  builder,  a  bricklayer  undertaking  to  lay  brick  to  be  sup- 
plied by  the  builder,  and  the  like.  In  the  case  of  McNah,  etc.,  Co. 
V.  Paterson,  etc.,  Co.,  1  Buch.  133,  such  a  claim  was  presented  for 
decision  to  the  same  Vice  Chancellor,  under  the  unamended 
wording  of  the  section;  and  he  held  that  such  claim,  being  the 
claim  of  a  sub-contractor  who  had  excavated  the  cellar,  with  his 
teams  and  laborers  for  the  builder,  at  a  price  per  cubic  yard,  was 
invalid.  No  deliverance  on  that  subject  has  as  yet  been  made 
in  the  Court  of  Errors  and  Appeals  beyond  the  remark,  in  Beck- 
hard V.  Rudolph.  2  Rob.  740  (at  p.  745),  that  if  such  claims  are 
not  valid,  "it  must  be  on  the  ground  that  with  respect  to  claims 
for   mere  labor   performed,   the   benefit  of   §   3   is    (was)    by   its 


Revision  of  1898,  §  3,  ISTotb  1.  55 

terms  restricted  to  any  journeyman  or  laborer  employed  by  him 
(the  contractor),  etc."  Although  the  McNah  case  went  to  the 
Court  of  Errors  and  Appeals  and  was  affirmed,  there  was  no  ap- 
peal taken  from  the  decision  of  the  point  at  present  under  con- 
sideration; the  matter  that  was  decided  in  that  court  being 
the  affirmance  of  the  Vice  Chancellor's  allowance  of  claims  of 
sub-contractors  for  materials  furnished  and  labor  in  installing 
them  in  situ,  under  the  rule  settled  in  the  BecJchard  case,  which 
was  re-affirmed.  McNah,  etc..  Co.  v.  Paterson  Co.,  2  Buch.  929. 
As  was  said  by  the  Vice  Chancellor  in  the  McNah  case,  1  Buch. 
133,  at  page  155,  the  section,  as  amended  in  1905,  now  plainly 
gives  a  sub-contractor  the  remedy,  whatever  the  character  of  his 
contract  may  be;  although  the  legislature  carelessly  has  failed 
to  make  the  necessary  corresponding  changes  in  the  wording  of 
other  sections,  notably  the  fourth  section. 

(e.) 

MAY  CLAIMANTS  WHO  CAN  FILE  A  LIEN  ALSO  GIVE 
STOP  NOTICE?  In  Summermmi  v.  Knowles,  4  Vroom  202, 
an  action  at  law  was  brought  against  the  owner  by  a  material- 
man upon  his  stop  notice,  and  the  declaration  failed  to  aver  that 
the  contract  was  in  writing  and  filed.  It  was  held  that  the  dec- 
laration was  fatally  defective,  because  of  such  omission,  because 
the  word,  such,  in  the  phrase,  "any  person  who  may  have  furnished 
materials  used  in  the  erection  of  such  house,  etc.,"  must  be  re- 
ferred, for  its  antecedent,  to  the  phrase  in  the  second  section, 
"any  building  erected  in  whole  or  in  part,  by  contract  in  writing," 
as  qualified  by  the  requirement  that  such  contract  be  filed:  and 
that,  therefore,  the  right  to  resort  to  the  remedy  by  stop  notice, 
in  the  case  of  a  materialman,  can  exist  only  when  he  is,  by 
the  filing  of  the  contract,  deprived  of  a  right  to  file  a  lien  claim. 
It  will  be  noted  that  the  language  of  the  third  section,  from 
the  beginning  to  the  present  time,  omits  this  imix»rtant  word, 
such,  in  the  clause  which  gives  journeymen  and  laborers  (and 
now  sub-contractors)  the  right  to  a  stop  notice,  and  confers  it 
upon  them  simply,  if  employed  by  the  builder  "in  erecting  or 
constructing  any  building." 

Notwithstanding  this  very  material  difference  in  wording,  it 
has  been  said  in  several  cases,  Carlisle  v.  Knapp,  22  Vroom  329; 
Frank  v.  Freeholders,  10  Vroom  347;  BecWiard  v.  Rudolph,  2  Rob. 
740;  and  plainly  held  in  one.  Weaver  v.  Atlantic  Roofing  Co.,  12 
Dick.  547,  that  no  person  can  have  the  remedy,  by  way  of  stop 
notice,  unless  the  owner's  contract  has  been  duly  filed.  The  only 
point  decided  in  the  Carlisle  case  was  that  a  person  who  furnished 
a  sub-contractor  materials  could  not  give  notice,  because  the 
obvious  pui-pose  of  the  third  section  is  to  provide  a  remedy  only 
for  creditors  of  the  builder.  In  the  Frank  case,  the  action  was  a 
suit  at  law  upon  a  notice,  given  to  the  owners  of  a  building, 
designed  for  public  use  (county  buildings),  by  a  sub-contracting 
painter  who  furnished  his  materials  and  applied  them.  It  \yas 
intimated  that,  on  grounds  of  public  policy  no  right  of  lien 
could  be  enforced,  if  it  could  exist,  against  such  a  building;    but 


56  Mechanics  Lien  Law. 

as  the  contract  with  the  builder  had  been  filed,  it  was  held  that 
the  claimant  should  have  judgment;  Justice  Dixon  dissenting 
on  the  ground  that  no  lien  could  exist  upon  such  buildings,  and 
that  the  filing  of  the  contract  could  operate  to  give  a  remedy, 
imder  the  third  section,  only  when  it  cut  off  a  lien  that  other- 
wise could  have  existed  under  the  first  section.  In  the  Weaver 
case  it  was  plainly  held  (by  Vice  Chancellor  Grey)  that  where 
the  building  contract  is  not  filed  (in  this  case  it  was  insuffi- 
ciently filed),  l<iborers  as  well  as  materialmen,  cannot  have  the 
remedy  by  stop  notice;  since  they  may  have  a  lien  on  the  build- 
ing under  the  first  section.  In  the  BecTchard  case  the  question 
in  hand  was  not  presented  for  decision ;  but  it  was  said,  arguendo, 
that  "it  has  been  repeatedly  held  that  the  remedy  by  stop  notice 
is  confined  to  those  who  are  prevented  from  having  a  lien  upon 
the  building  by  reason  of  the  filing  of  the  contract." 

With  these  decisions  in  mind.  Vice  Chancellor  Stevenson,  in 
McNab,  etc.,  Co.  v.  Peterson,  etc.,  Co.,  1  Buch.  133,  points  out 
that  the  original  enactment  of  this  third  section  in  1835  gave 
laborers  and  journeymen  this  remedy,  by  way  of  stop  notice, 
whether  the  building  contract  was  filed  or  not;  that  when  it 
was  not  filed  they  had  both  remedies,  a  lien  upon  the  building, 
and  the  right  of  recourse  to  the  fund  by  stop  notice;  that  it  has 
been  assumed  that  the  workman's  remedy,  by  stop  notice,  like 
that  of  the  materialman,  is  now  confiiied  to  the  case  when  the 
building  contract  has  been  filed,  but  that  the  point  is  not  dis- 
cussed in  the  cases  and  the  legislation  which  effectecl  such  a 
change  has  not  been  indicated;  but  that,  by  the  amendment  of 
1905,  especially  by  placing  a  sub-contractor  (as  it  does)  in  the 
same  class  with  journeymen  and  laborers,  and  not  in  the  class 
with  mere  materialmen,  it  is,  perhaps,  indicated  that  the  stop  no- 
tice can  now  be  employed  by  no  one,  if  the  owners  contract  has 
not  been  filed. 

It  seems  plain  that  not  this,  but  quite  a  contrary  conclusion  is 
warranted  by  the  Vice  Chancellor's  premises.  For  if,  prior  to  the 
amendment  of  1905,  journeymen  and  laborers  had  a  right  to  the 
remedy  by  stop  notice  whexi  the  contract  was  not  filed;  that 
amendment  has  not  diminished  their  right,  by  merely  giving  it 
also  to  such  materialmen,  or  others,  as  may  be  sub-contractors 
employed  by  the  builder,  which  is  all  that  the  amendment  does; 
but  has  enlarged  the  rights  of  such  materialmen,  and  given  a 
new  right  to  such  others. 

There  may,  however,  be  a  question,  as  to  whether  journeymen 
or  laborers  had  such  a  right  prior  to  the  amendment  of  1905. 
As  noted  already,  the  Weaver  case  is  a  decision  in  point,  to  the 
effect  that  they  had  not;  but  that  decision  obviously  passed  the 
point  HOW  in  question  sub  silentio,  and  without  due  attention 
to,  or  consideration  of,  the  matter.  In  all  the  other  cases  above- 
cited,  the  point  was  not  ruled  at  all.  It  is  possible  that  there  may 
be  other  cases  like  the  Weaver  case,  which  have  actually  ruled 
a  laborer's  claim  to  be  invalid  because  the  contract  was  not 
filed  (was  English  v.  Warren,  20  Dick.  30,  such  a  case?);  but 
if  so,  it  is  quite  certain  that  they  too  have  passed  the  matter. 


Revision  of  1898,  §  3,  Note  1.  57 

like  that  case,  without  due  considei-ation ;  and  that  a  reference 
to  the  history  of  this  legislation  would  show,  as  Vice  Chancellor 
Stevenson  has  elaborately  pointed  out,  in  the  McNah  case,  that 
the  contrary  was  originally,  if  it  be  not  still,  the  law. 

The  solution  of  the  question  thus  raised,  perhaps,  depends 
upon  whether  the  reasoning  in  Summerman  v.  Knowles,  supra, 
exhausts  all  the  possible  grounds  upon  which  that  decision  could 
have  been  rested.  If  the  reason  there  given  was  the  only  reason 
upon  which  the  third  section  could  then  have  been  construed 
as  denying  a  materialman  a  right,  by  stop  notice,  when  the  con- 
tract was  not  filed,  it  is  the  only  reason  now,  and  that  being 
80,  the  court  must  then  have  construed  that  section,  and  must 
now  construe  it,  as  giving  to  laborers  and  journeymen  (and  now 
sub-contractors)  the  very  right  that  it  denied  to  materialmen; 
for  the  right  of  the  latter  was  (and  still  is)  given  only  for  ma- 
terials furnished  for  any  such  house,  while  the  right  of  the  work- 
man is  given  when  he  has  been  employed  upon  a7iy  building. 

The  Court  of  Errors  and  Appeals,  in  Carlisle  v.  Knapp,  22 
Vroom  329,  concluded  that  the  legislature  did  not  intend  to  give 
to  materialmen  generally,  but  only  to  such  of  them  as  are  credi- 
tors of  the  builder,  the  remedy  by  stop  notice,  as  we  have  above 
seen;  because  such  intent  was  to  be  gathered  from  the  history 
oi  the  legislation  and  the  general  object  of  the  section,  as  well 
as  from  its  terms  and  the  procedure  it  requires;  and  so  con- 
cluded that  the  words,  "to  such  contractor,"  must  be  read  into 
the  section.  Perhaps  there  may  be  grounds  upon  which  the 
court  may  conclude  that  the  phrase,  "employed  by  him  in  the 
erecting  or  constructing  any  building,"  must  be  read  as  though 
it  said  "any  such  building;"  but,  if  not,  it  is  difficult  to  see 
how  the  conclusion  can  be  avoided,  that  journeymen  and  la- 
borers, and  now  sub-contractors,  employed  by  the  builder,  can 
have  the  remedy  by  stop  notice,  whether  a  contract  is  filed  or 
not;  but  that  materialmen,  who  are  not  also  such  sub-contrac- 
tors, cannot. 

if.) 
It  may  be  here  noted  that  WHERE  THE  CONTRACT,  AS 
FILED,  FALSELY  STATES  THE  PRICE,  as  at  $5,100  when 
the  real  price  was  $4,100,  its  filing  may  be  treated  as  a  nullity 
or  otherwise,  at  the  ele<?tion  of  the  claimant,  who  may,  therefore, 
have  either  a  lien  or  the  remedy  by  stop  notice,  accordingly  as  he 
so  elects.    Murphy  v.  Nicholas,  49  Atl.  447. 

(g.) 

It  may  be  also  again  noted  that,  in  the  case  of  BUILDING'S 
FOR  PUBLIC  PURPOSES,  while  there  can  be  no  lien  enforced 
against  them,  a  mechanic  or  materialman  may  have  the  remedy  of 
a  stop  notice,  if  the  contract  be  filed.  Frank  v.  Freeholders,  10 
Vroom  347;  and  such  remedy  is  concurrent  with,  and  not  ex- 
cluded by,  the  remedy  also  given  by  the  act  of  1892,  p.  369. 
Delafield  v.  Sayre,  31  Vroom  449;  Cam^den.  v.  Camden,  47  Atl. 
220;    Garrison   v.   Borio,  47   Atl.   1060;  iV^or^on   v.   Sinlch^rn,  48 


68  Mechanics  Lien  Law. 

Atl.  822;  s.  c.  50  Atl.  506;  Hall  v.  Jersey  City,  50  Atl.  603; 
Kelaher  v.  English,  50  Atl.  902 ;  Arzonico  v.  West  Neiv  Yorh,  69 
Atl.  450. 

2.  THE  STATUTORY  REQUIREMENTS  MUST  BE 
STRICTLY  PURSUED.     Supt.  v.  Heath,  2  McCart.  22. 

The  claimant  must  be  able  to  show :  1.  That  the  alleged  owner 
has  some  estate  or  interest  in  the  land  upon  which  a  building 
is  being,  or  has  been,  erected.  2.  That  a  building,  or  some  part 
thereof,  is  being  or  has  been  erected,  or  constructed,  thereon  pur- 
suant to  a  written  contract  which  has  been  filed.  3.  That  the 
claimant  is  a  creditor  of  the  building  contractor,  for  work  done, 
or  materials  furnished,  or  for  both.  4.  That  such  work  or  ma- 
terials were  used  in  the  erection  or  construction  of  such  build- 
ing. 5.  That  the  claimant  has  demanded  his  debt  of  the  builder. 
6.  That  such  debt  was  due  before  such  demand  was  made.  7.  That 
the  claimant  demanded  no  more  than  was  due  him.  8.  That  the 
builder  refused  to  pay,  upon  such  demand.  9.  That  the  claimant 
has  given  the  owner  notice  in  writing  "of  such  refusal  and  of  the 
amount  due  to  him  and  so  demanded."  10.  That  the  owner  is  sat- 
isfied that  the  claim  is  correct. 

These  various  requirements  will  now  be  considered  in  order, 
so  far  as  they  are  not  elsewhere  dealt  with,  in  which  case  proper 
reference  will  be  made. 

1. 

THE  ALLEGED  OWNER  MUST  HAVE  SOIVIE  INTEREST 
OR  ESTATE  IN  THE  LAND.  This  seems  to  be  the  ruling  of 
the  Court  of  Errors  and  Appeals,  in  Gardner  &  Meehs  Co.  v. 
Herold.  72  Atl.  24.  In  that  case  the  contract  was  made  by  a 
woman's  husband  for  the  erection  of  a  building  on  her  land;  in 
which,  under  the  decision  in  Porch  v.  Fries,  3  C.  E.  Gr.  204; 
app.,  in  Trade  Ins.  Co.  v.  Barracliff.  16  Vroom  543,  the  husband 
had  no  estate  or  interest.  It  was  held  that  the  plain  words  of 
the  statute  require  that  the  notice  be  served  upon  the  owner 
of  the  building,  and  that  no  one  could  be  the  owner  of  the 
building  on  another's  land,  "if  he  had  no  estate  whatever  which 
would  enable  him  either  to  enjoy  the  use  of  the  building,  or  to 
sell  or  remove  it." 

See  also  under  §  2,  note,  owner's  signature  to  contract;  also 
under  §  1,  note,  estate  of  owner. 

2. 
THERE  MUST  HAVE  BEEN  A  CONTRACT  WHICH  HAS 
BEEN  FILED.  There  may  be  a  doubt  as  to  whether  this  is  al- 
ways so  or  not.  See  previous  note,  7nay  claimants  who  can  file 
a  lien,  also  give  a  stop  notice,  where  the  matter  is  considered  at 
length. 

3. 
THE    CLAIMANT    MUST    BE    A    CREDITOR    OF    THE 
BUILDER  for  work  done  or  materials  furnished,  or  for  both. 


Kevision  of  1898,  §  3,  Note  2.  59 

See  for   a  full  consideration  of   this,   our  previous  note,  who 
inuy  he  a  claimant. 

4. 
THE  WORK  OR  MATERIALS  MUST  HAVE  BEEN  USED 
IN  ERECTING  THE  BUILDING. 

The  statutory  words,  "for  labor  or  materials  used  in  the  erec- 
tion of  such  building"  seem  plainly  to  be  an  adjunct  to  the 
previous  words,  "due  and  claimed  by  any  such  journeyman,  la- 
borer, materiahnan,  or  sub-contractor;"  and,  therefore,  limit  the 
right  of  the  claimant  to  give  notice  only  of  a  debt  which  is 
due  therefor.  It  was  contended  in  McNah,  etc.,  Co.  v.  Paterson, 
etc.,  Co.,  2  Buch.  929,  that  the  notice  must  state  that  the  ma- 
terials, etc.,  were  used,  etc.,  and,  in  holding  that  the  notice  need 
not  so  state,  it  was  said:  "The  notice  was:  This  is  to  notify 
you  that  I  have  sold  to  the  Paterson  Co.  for  your  building  on 
Straight  street,  materials  to  the  amount  of,  etc.  This  is,  in 
eflfect,  an  averment  that  the  materials  were  used  in  the  building. 
That  such  was  the  case,  in  point  of  fact,  is  settled  by,  etc." 
In  the  same  case,  in  the  court  below,  1  Buch.  133,  at  page  150, 
it  is  said  that  a  failure  to  show  that  the  materials,  ete.,  have 
been  n^ed  in  the  building  would  defeat  the  claimant's  lien  on 
the  fund.  See  also  Beckhard  v.  Rudolph,  2  Rob.  740;  rev.  s.  c. 
2  Id.  315. 

5. 

THE  CLAIMANT  MUST  MAKE  DEMAND  UPON  THE 
BUILDER. 

See  post  in  this  note  §  9  as  to  the  allegation  of  a  demand  in 
the  claimant's  notice. 

See  Adams  v.  Wells,  53  Atl.  610. 

PROVING  DEMAND.  The  presentation  of  a  bill  to  the 
builder,  who  has  no  money  with  which  to  pay  it,  coupled  with  the 
claimant's  statement  to  such  builder  that  the  former  is  going 
to  give  the  owner  notice  of  his  claim,  and  the  fact  that  the  cor- 
rectness of  the  claim  was  undisputed,  and  that  the  builder  then 
said  he  could  not  pay  it,  is  sufficient  proof  of  a  demand  and  re- 
fusal. Evaiis  V.  Lower,  1  Rob.  232.  So  when  the  contractor  aban- 
dons the  contract  before  his  sub-contractor  has  completed 
his  work,  and  gives  the  latter  a  written  agreement,  rescinding 
the  sub-contract  as  to  the  work  not  completed  and  fixing  the 
amount  due  for  the  work  done,  and  this  is  done  because  the  con- 
tractor cannot  proceed  because  unable  to  pay,  there  is  a  sufficient 
demand  and  refusal.     South  End  Co.  v.  Harden.,  52  Atl.  1127. 

The  claimant  need  not  make  the  demand  in  i^erson,  neither  need 
he  give  any  written,  authority  to  the  one  who  does  so.  Fehling  v. 
Goings,  1  Roh.  375. 

A  demand  for  less  than  is  due  may  be  tantamount  to  a  demand 
for  all  that  is  due.     South  End  Co.  v.  Harden.,  52  Atl.  1127. 

6. 
THE  CLAIMANT'S  DEBT  MUST  BE  DUE  BEFORE  HE 
DEMANDS  IT. 


60  Mechanics  Lien  Law. 

A  claimant's  proof  fails  when  his  demand  was  made  before 
his  whole  bill  became  due,  although  it  did  all  become  due  before 
he  served  notice  on  the  owner.  Kirtland  v.  Moore,  13  Stew.  106; 
McPherson  v.  Walton,  15  Stew.  282;  Bowlhy  v.  WilUson,  11  N.  J. 
L.  J.  42;  Hall  v.  Baldwin,  18  Stew.  858;  Flaherty  v.  Atlantic  Co., 
44  Atl.  186;  Donnelly  v.  Johnes,  44  Atl.  180;  Reeve  v.  Elmendorf 
9  Vroom  125;   Adams  v.  Wells,  53  Atl.  610. 

For  the  case  when  the  builder  rescinds  a  sub-contract  before  it 
is  completed  see  ante  in  this  note,  §  5.  South  End  Co.  v.  Harden, 
52  Atl.  1127;    Evans  v.  Lower,  1  Eob.  232. 

TAKING  A  NOTE  operates  to  postpone  the  accrual  of  the 
claimant's  debt  during  the  running  of  the  note,  McPherson  v. 
Walton,  15  Stew.  282;  even  although  the  note  is  not  accepted  as 
payment  of  the  debt.  Fry  v.  Patterson,  20  Vroom  612;  Kirtland 
V.  Moore,  13  Stew.  106;  Taplor  v.  Wahl,  43  Vroom  10;  but  taking 
judgment  on  his  claim  has  no  such  effect,  Anderson  v.  Huff,  4 
Dick.  349 ;  nor  does  the  fact  that  he  has  obtained  an  order  from 
the  builder  on  the  owner,  Dunn  v.  Stokern,  16  Stew.  401 ;  and  see 
under  §  1,  note  3. 

7. 
THE  CLAIMANT'S  DEMAND  MUST  NOT  BE  FOR  MORE 
THAN  IS  THEN  DUE  HIM. 

In  determining  the  amount  of  the  debt  dtie,  all  just  credits 
must  be  deducted,  Flaherty  v.  Atlantic,  etc.,  Co.,  44  Atl.  186; 
and  the  account  must  not  include  any  item  of  work  or  materials 
which  are  not  properly  part  of  the  work  imdertaken  by  the  builder, 
in  his  contract.  McPherson  v.  Walton,  15  Stew.  282.  The  claim- 
ant may  give  notice  for  a  less  sum  than  that  which  is  due  him, 
in  which  case  he  will  be  deemed  to  have  waived  his  claim  against 
the  fund  for  the  excess.  Donnelly  v.  Johnes,  44  Atl.  180;  South 
End  Co.  V.  Harden,  52  Atl.  1127.  But  it  will  be  fatal  for  him 
to  demand  anything  beyond  the  sum  which  is  due  him,  Reeve  v. 
Elmendorf,  9  Vroom  125;  Kirtland  v.  Moore,  13  Stew.  106;  Mc- 
Pherson V.  Walton,  15  Stew.  282 ;  Hall  v.  Baldivin,  18  Stew.  858 ; 
Flaherty  v.  Atlantic  Co.,  44  Atl.  186;  Donnelly  v.  Johnes,  44  Atl. 
180;  even  although  the  excess  is  but  a  small  amount.  Hall  v. 
Baldwin,  18  Stew.  858  (E.  &  A.) ;   Ad^ims  v.  Wells,  53  Atl.  610. 

We  had  supposed  that  the  rule  as  above  stated  had  been  firmly 
settled;  but  in  the  late  case  of  Evans  v.  Lower,  1  Rob.  232,  it 
was  held  by  Vice  Chancellor  Reed,  that  a  claim  was  good;  al- 
though the  amount  demanded  (and  specified  in  the  notice)  was 
excessive,  by  reason  of  the  inclusion  of  non  lienable  items  for 
tools  supplied  and  money  loaned;  and  that,  as  the  whole  amount 
so  demanded  was  in  fact  due  the  claimant,  and  the  non  lienable 
items  were  included  in  the  demand  and  notice  in  good  faith, 
though  by  mistake,  the  claimant  was  entitled  to  be  paid  the 
amount  demanded,  less  such  items.  Again  in  Taylor  v.  Wahl, 
40  Vroom  471,  Justice  Fort,  speaking  in  the  Supreme  Court  said, 
at  page  473 :  "If  it  appear that  the  claim is  ex- 
cessive, to  the  knowledge  of  the  claimant,  the  claimant  cannot  re- 
cover anything,  and  the  owner  is  entitled  to  a  verdict.    The  prin- 


Revision  of  1898,  §  3,  Note  2.  61 

ciple,  controlling  in  such  a  case  as  this,  is  the  same  as  that  de- 
clared by  the  Court  of  Errors  and  Appeals  to  apply  where  a  no- 
tice to  hold  back  is  given  to  a  city  by  a  claimant  against  a  con- 
tractor upon  work  under  a  public  contract.  (Citing)  Camden 
Wks.  V.  Camden,  19  Dick.  723." 

The  case  cited  was  a  case  arising  under  the  act  of  1892,  p.  369. 
That  act,  in  its  first  section,  gives  a  lien  to  every  laborer,  etc., 
upon  the  moneys  in  the  control  of  the  municipality,  ui)on  his 
complying  with  its  second  section.  In  §  2,  it  provides  that  such 
claimant  shall,  inter  alia,  file  a  verified  statement  of  "the  amount 
claimed,  from  whom  due,  and  if  not  due  when  it  will  be  due,  giv- 
ing the  amount  of  the  demand  after  deducting  all  just  credits 
and  oflfsets."  In  section  5,  it  provides  "that  the  lien  shall  attach 
from  the  time  of  filing  thereof."  It  will  be  evident,  upon  the  most 
cursory  reading  of  its  provisions,  that  this  act  expressly  contem- 
plates that  the  lien,  which  it  gives,  may  be  called  into  existence-, 
by  filing  said  verified  statement,  before  there  is  anything  due  ^be 
claimant;  and,  that  it,  therefore,  contemplates,  by  necessary  in- 
ference, that  such  statement  shall  be  effective  to  call  the  lien  into 
being,  although  it  may  be  difficult,  or  even  impossible,  to  state 
therein  the  precise  amount  which  will  be  due  such  claimant.  As 
a  consequence,  it  was  necessarily  held  that  the  claimant,  under 
this  act,  does  not  lose  his  lien  by  an  erroneous  statement  of 
the  amount  claimed,  unless  he  has  knowingly  and  consciously 
over-stated  it.  Camden  Iron  Works  v.  Camden,  15  Dick.  211; 
s.  c.  aff.  19  Dick.  723;  Garrison  v.  Borio,  10  Dick.  236;  Hall  v. 
Jersey  City,  17  Dick.  489;  s.  c.  aff.  19  Dick.  766. 

But  a  very  different  rule,  as  is  above  pointed  out,  has  been 
adopted  in  respect  of  the  requirements  of  the  third  section  of 
the  mechanic's  lien  act,  and  that  rule,  adopted  upon  grave  con- 
sideration, has  been  followed  and  applied  in  numerous  cases  for 
many  years.  It  is,  therefore,  questionable  whether  the  decision 
in  Evans  v.  Loiuer  was  sound;  and  it  is  pretty  clear  that  the 
expression  in  Taylor  v.  Wahl,  which  was  obiter,  was  also  an  in- 
advertence.   See  also  note  4  to  §  2  of  the  act  of  1892  post. 

Since  the  foregoing  note  was  written,  the  act  of  1910,  p.  500. 
has  been  passed,  amending  the  third  section  so  as  now  to  require 
the  claimant  to  give  notice  of  the  amount  due  to  him,  "specify- 
ing said  amount  as  nearly  as  possible."  It  may  be  said,  with 
much  force,  that  an  amount  can  never  be  said  to  be  due  which 
is  not  at  the  same  time  capable  of  exact  ascertainment  and  state- 
ment; and  that,  hence,  the  amendment  has  altered  the  section  in 
no  respect. 

We  imagine,  however,  that  it  will  be  urged,  and  probably  be 
held,  that  hereafter  a  notice  will  be  good,  notwithstanding  an 
overstatement  of  the  amount  actually  due,  when  it  appears  that 
the  claimant  has  not  wittingly  intended  any  fraud  and  has  exer- 
cised all  the  care,  in  ascertaining  and  stating  the  amount,  which 
our  familiar  friend,  the  reasonably  prudent  man,  ought,  under 
aU  the  circumstances  of  the  particular  case,  to  have  exercised. 

If  this  view  be  adopted,  there  will  be  little  likelihood  that  a 


62  Mechanics  Lien  Law. 

notice  will  ever  be  found  to  le  bad,  in  an  action  at  law,  because 
of  an  over-statement  of  the  amount  due;  provided  the  good  and 
lawful  twelve  are  entrusted  with  the  duty  of  detennining  the 
question:  and  the  legislature  might  as  well  have  enacted  that  no 
notice  of  claim  shall  be  held  to  be  bad  for  an  over-statement  of 
the  amount  due;  unless  it  be  made  with  a  palpably  fraudulent 
intent,  or  under  circumstances  which  unmistakably  indicate  that 
the  claimant  has  made  no  attempt,  in  good  faith,  to  state,  with 
precision,  the  amount  due  to  him. 

In  the  policy  that  underlies  this  sort  of  legislation,  the  unfor- 
tunate owner,  who  has  the  scot  to  pay,  does  not  seem  to  be  re- 
garded with  much  consideration ;  but  his  embarrassments  are  un- 
worthy of  serious  regard,  and  it  is  notorious  that  thrift  is  greatly 
promoted  by  every  device  that  discourages  the  exercise  of  it. 

8. 
THE    BUILDER    MUST    HAVE    EEFUSED    UPON    DE- 
MAND, TO  PAY. 

See  the  cases  below  cited  to  the  point  that  the  claimant  s  notice 
must  state  such  refusal,  which,  of  course,  must  be  the  statement 

of  a  fact.  ,     . 

If  the  claimant  demanded  less  than  his  due  it  is  a  good  de- 
mand; and  a  refusal  to  pay  upon  such  demand  may  be  a  refusal 
to  pay  all  that  the  builder  owes  such  claimant.  South  End  Co.  v. 
Harden,  52  Atl.  1127. 

\s  to  what  is  sufficient  proof  of  a  refusal,  see  Evans  v. 
Loiver,  1  Rob.  232;  South  End  Co.  v.  Harden,  52  Atl.  1127,  ante, 
this  note  §  5. 

See  also  Adams  v.  Wells,  53  Atl.  610. 

THE  CLAIMANT  MUST  GIVE  THE  OWNER  NOTICE  IN 
WRITING  OF  SUCH  REFUSAL  AND  OF  THE  AMOUNT 
DUE  TO  HIM  AND  SO  DEMANDED.  ,        j      . 

FORM  OF  NOTICE.  The  notice  is  not  a  pleading  and  need  not 
have  the  certainty  which  a  pleading  must  have.  It  may  be  in  any 
form  which  in  effect  eivcs  the  written  notice  which  the  statute  pre- 
scribes. McNah,  etc..  Co.  v.  Paterson,  etc.,  Co.  1  Buch.  133; 
Fehling  v.  Goings,  1  Rob.  375.  It  may  consist  of  several  papers 
taken  together,  such  as  an  order,  an  assignment  and  a  notice. 
McNah,  etc.,  Co.  v.  Paterson  Co.,  2  Buch,  729;  aff  s c,  1  Id 
133  It  may  be  addressed  to  the  \\n-ong  person  if  it  be_^in  fact 
served  upon  the  right  one;  or  it  may  misname  the  builder  il  it 
sufficiently  identify  him  so  that  the  owner  is  not  misled.  Gardner 
&  MeeTciCo.  v.  Herold.  72  Atl.  24,  settling  doubts  expres^  m 
BecTchard  v.  Rudolph,  2  Rob.  315.  So  also  is  McNal,  etc.,  Co.  v. 
Paterson,  etc.,  Co..  2  Buch.  729,  aff.  s.  c,  1  Buch.  133. 

SIGNATURE.  A  signature  by  one  partner  for  the  hrrn  is 
good.  Williams  v.  Bradford.  21  Atl.  331.  The  claimant's  name 
may  be  signed  by  his  agent  or  attorney,  without  anywrittrai  au- 
thority therefor.    Fehling  v.  Goings,  1  Rob.  375,  explaining  Foster 


Revision  of  1898,  §  3,  :N'ote  3.  63 

V.  Rudderow,  3  Atl.  694,  as  not  deciding  othei-wise.  A  corporate 
claimant's  notice  need  not  be  under  seal  nor  need  its  agent  who 
signs  it  have  express  or  written  authority.  Flaherty  v.  Atlantic 
Co.,  44  Atl.  180.  It  may  not  need  any  signature  at  all,  if  it  give 
the  owner  the  requisite  information  in  some  authentic  way. 
Fehling  v.  Goings,  supra. 

ESSENTIAL  CONTENTS.  It  must  set  forth  two  things:  1. 
The  amount  of  the  debt  due  the  claimant.  2.  That  the  builder 
has  refused  to  pay.  These  are  said  to  be  the  only  things  which  it 
must  set  forth.  McNah,  etc.,  Co.  v.  Paterson,  etc.,  Co.,  1  Buch. 
133;    Fehling  v.  Goings,  1  Eob.  375. 

STATEMENT  OF  AMOUNT  DUE.  It  is  probably  fatal  if 
the  notice  over-state  the  amovmt  really  due.  See  cases  cited  in 
this  note  under  §  7.  It  is  undoubtedly  fatal  if  it  state  no  amount 
at  all,  or  if  the  debt  was  not  due  until  after  notice  was  given  or 
demand  made.     See  this  note,  §  6. 

STATEMENT  OF  REFUSAL  TO  PAY.  It  must,  of  course, 
set  forth  the  builder's  refusal.  Thus  it  has  been  held  that  it  is 
not  sufficient  for  it  to  state  that  the  builder  neglected  to  pay  on 
demand.  Hall  v.  Baldwin,  18  Stew.  858;  and  so  that  it  is  not 
equivalent  to  the  statement  of  a  refusal  to  write:  "I  can't  seem 
to  get  a  settlement  with  the  builder,  Mr.  J."  Donnelly  v.  Johnes, 
44  Atl.  180.  See  also  Bowlhy  v.  Willison,  11  N.  J.  L.  J.  42; 
and  cases  cited  ante  in  this  note,  §  5. 

^  STATEMENT  OF  DEMAND.  It  has  been  held  that  the  no- 
tice must  set  out  that  payment  has  been  demanded.  Donnelly 
V.  Johnes,  4A  Atl.  180;  but  it  was  held  in  BecJchard  v.  Rudolph, 
2  Eob.  740;  rev.  s.  c,  2  Id.  315,  that  a  notice  which  sets  out  a 
certain  sum  as  due  for  materials  used,  etc.,  and  that  the  builder 
has  refused  to  pay  the  money  so  due  sufficiently  states  a  demand, 
since  refusal  implies  a  previous  demand  or  request  for  payment : 
and  in  Fehling  v.  Goings,  1  Eob.  375,  it  was  held  that  the  notice 
need  not  state  that  payment  has  been  demanded.  So  also  it  was 
said  in  the  McNah  case.  1  Buch.  133,  that  the  statute  does  not 
require  that  the  notice  shall  set  forth  any  demand  made. 

SEEVICE  OF  NOTICE.  A  stop  notice  may  be  effectively 
served  by  the  claimant  or  by  his  attorney,  or  agent.  Such  agent 
or  attorney  needs  no  written  authority.  Fehling  v.  Goings,  1 
Eob.  375. 

10. 
THE  OWNEE  MUST  BE  SATISFIED  OF  THE  COEEECT- 
NESS  OF  THE  CLAIM. 

See  note  5  post;   also  Evans  v.  Lower,  ante  in  this  note,  §  5. 

3.  EFFECT  OF  NOTICE  is  to  assign,  pro  tanto,  to  the  claim- 
ant the  right  of  the  builder  in  the  fund',  Wightman  v.  Brenner,  11 
0.  E.  Gr.  489;  Anderson  v.  Huff,  4  Dick.  349.  In  some  cases  it 
was  doubted  or  denied  that  such  assignment  extended,  as  well  to 
what  is  to  grow  due,  as  to  what  is  due,  when  the  notice  is  served, 
Kiriland  v.  Moore,  13  Stew.  106;  Craig  v.  Smith,  8  Vroom  549; 
Boulhy  V.  Willison,  3  N.  J.  L.  J.  42;  and  see.  Shannon  v.  Hohoken, 


64  Mechanics  Lien  Law. 

10  Stew.  123,  318;  Lanigan  v.  Bradley,  etc.,  Co.,  5  Dick.  201;  Board 
of  Ed.  V.  Dxiparquei,  5  Dick.  234;  Chosen  Freeholders  v.  Lindsley, 
14  Stew.  189,  195;  Burnett  v.  Jersey  City,  4:  Stew.  341,  351;  but 
these  cases  were  subsequently  overruled,  in  this  respect,  and  it 
was  settled  that  a  stop  notice  operate*  both  on  that  which  is  due 
and  that  which  is  to  grow  dine,  Mayer  v.  Mutchler,  21  Vroom 
162;  Budd  v.  Trustees,  22  Vroom  36;  Anderson  v.  Huff,  4  Dick. 
349;  Donnelly  v.  Johnes,  44  Atl.  K.  180;  Booth  v.  Kiefer,  47  Atl. 
R.  12;  and,  in  Donnelly  v.  Johnes,  supra,  it  was  said,  that  such 
notices  must  be  satisfied  out  of  the  next  installment  becoming  due 
to  the  contractor,  after  their  service,  and  if  they  are  not  com- 
pletely satisfied  by  it,  they  apply  to  the  next  instalhnent,  as  to 
the  residue,  and  so  on  until  the  final  installment  is  disi)osed  of. 

It  will  be  noticed  that  the  legislature  by  the  amendment  made 
in  1895  has  embodied  the  construction  of  the  statute,  just  above 
noted,  in  its  express  terms. 

If  the  builder  has  agreed  to  take  his  pay  in  land,  the  claimant, 
imder  a  stop  notice,  acquires  an  equity  to  be  paid  out  of  such 
land.  Anderson  v.  Huff,  4  Dick.  349;  but  in  any  case,  the  claim- 
ant's right  ag:ainst  the  fund  must,  of  course,  be  limited  to  such 
part  of  it  as  has  been  earned  by  the  builder,  or  for  his  account. 
Mayer  v.  Mutchler,  21  Vroom  162 ;  and  the  owner's  right  to  re- 
tain the  moneys  earned  by  the  contractor  until  the  completion 
of  the  building,  and  then  to  make  deductions  for  delay  in  the 
work,  or  for  the  cost  of  completing  it  is  available  to  him  as 
much  against  claimants  as  against  the  contractor.  Reeve  v. 
Elmendorf,  9  Vroom  125;    Bemz  v.  Marcus  Sayre  Co.,  7  Dick. 

275 

AS  AGAINST  THE  BUILDER'S  SURETIES,  who  have  com- 
pleted the  work  which  he  has  abandoned,  in  order  to  protect  them- 
selves, the  rights  of  claimants  by  stop  notice,  are  postponed  both 
as  to  a  retained  percentage  that  had  been  earned  by  such  con- 
tractor, and  the  balance  of  the  contract  price;  until  such  sure- 
ties have  been  reimbursed  by  their  expenditures.  *S^^.  Peter's 
Church  V.  Van  Note,  21  Dick.  78.  This  is  because  nothing  i3 
due  such  contractor  \mtil,  the  sureties  have  completed  their  un- 
dertaking, and  have  been  paid  for  it.  But  where  the  sureties 
merely  furnish  to  the  builder  the  materials  and  labor  with  which 
to  finish  the  work,  although  he  is  insolvent  and  unable  other- 
wise to  complete  it;  they  have  no  superior  equity  therefor,  and 
the  money  becomes  due  the  builder,  as  the  work  progresses,  and 
is  subject  to  claims  by  stop  notice.  Evans  v.  Lower,  1  Rob.  232 ; 
compare  Fell  v.  McManus,  1  Atl.  747. 

AS  TO  A  TRUSTEE  IN  BANKRUPTCY,  a  stop  notice  is 
not  a  "legal  proceeding"  within  §  67,  f  f  of  the  Bankrupt  Act, 
which  avoids  all  liens  obtained  through  legal  proceedings.  Those 
words  mean  proceedings  in  a  court  of  justice.  Neither  is  it  such 
an  assignment  as  is  invalidated  by  that  section,  nor  is  it  a  trans- 
fer by  the  builder  so  as  to  be  void  because  put  in  within  four 
months  before  his  bankruptcy.    Fehling  v.  Goings,  1  Rob.  375. 


Revision  of  1898,  §  3,  Xote  5.  65 

4.  LABOE  OR  MATERIALS  USED.  As  to  this,  see  ante, 
note  2,  to  this  section,  §  4. 

5.  ACTION  AT  LAW.  A  claimant  can  bring  an  action  at 
law  against  the  owner,  but  not  if  the  latter  has  reasonable  cause 
to  dispute  his  claim.  Reeve  v.  Elmendorf,  9  Vroom  125.  This 
does  not  mean  merely  that  a  plea,  that  the  amount  demanded 
in  the  notice  is  excessive,  is  a  good  plea  in  bar;  although  that 
also  is  true,  since  the  claimant  cannot  have  judgment  for  a 
sum  less  than  he  has  demanded  of  the  builder,  Reeve  v.  Elmen- 
dorf, supra;  but  even  if  the  claim  is  not  excessive  the  claimant 
cannot  have  a  verdict,  if  he  fails  also  to  aver  and  prove  that, 
before  suit  begun,  the  owner  was  in  fact  satisfied  of  the  correct- 
ness of  his  demand,  ^\^len  the  claimant  cannot  show  those  facts, 
his  only  safe  course  is  to  first  verify  his  claim  by  a  judgment 
against  the  builder,  although  such  judgment  will  not  conclude 
the  owner.     Reeve  v.  Elmendorf,  supra. 

By  virtue  of  §  4,  the  claimant  must  so  verify  his  claim  in  any 
case  when  notified,  under  that  section,  to  do  so;  but,  in  the 
absence  of  such  notice,  the  mere  fact,  that  the  builder  disputes 
the  correctness  of  his  claim,  will  not  preclude  the  claimant  from 
beginning  suit  against  the  owner;  if  he  can  show  that  his  claim 
is  in  fact  correct,  and  that  the  owner  is  satisfied  that  it  is. 
And  this  he  may  establish  by  showing  that  such  owner  ought 
to  have  been  so  satisfied;  although  he  may  not  be  able  to  show 
that  the  owner  admitted  the  fact  so  to  be,  and  even  in  the  face 
of  the  latter's  expressed  dissatisfaction,  if  such  expressed  dis- 
satisfaction can  be  shown  to  have  been  without  foundation  and 
merely  captious.     Reeve  v.  Elmendorf,  supra. 

JURISDICTION.  The  statute  does  not  limit  the  claimant  to 
any  particular  court,  and  he  may  therefore  bring  his  action  in 
any  of  the  courts  of  law.  Thus,  in  Summerman  v.  Knowles,  2 
Vroom  202,  the  action  was  begun  in  the  small  cause  court,  and 
taken,  by  apxjeal.  to  the  common  pleas;  in  Taylor  v.  Reed,  52 
Atl.  579,  it  was  begun  in  the  district  court;  in  Craig  v.  Smith, 
8  Vroom  549;  Reeve  v.  Elmendorf,  9  Vroom  125;  Mayer  v. 
Mutchler,  21  Vroom  162;  and  Blauvelt  v.  Fuller,  48  Atl.  538, 
suit  was  begun  in  the  circuit  court;  while,  in  Taylor  v.  Wahl.  40 
Vroom  471,  it  was  begun  in  the  Supreme  Court. 

WHEN  SUIT  MAY  BE  BEGUN.  Although  the  stop  notice 
impounds  moneys  to  grow  due,  as  well  as  those  already  due,  yet 
suit  cannot  be  begun  against  the  owner  until  there  is  money 
due  the  contractor,  Craig  v.  Smith.  8  Vroom  549;  Mayer  v. 
Mutchler,  21  Vroom  162;  and  therefore  a  claimant  cannot  have 
an  action  against  the  owner  unless  the  contractor  could  have  re- 
covered, either  on  the  contract  or  a  quantum  meruit,  had  there 
been  no  stop  notices.  Mayer  v.  Mutchler,  supra.  So  if,  on  a  dis- 
pute between  the  owner  and  contractor,  it  is  submitted  to  arbitra- 
tion to  determine  whether  the  contract  has  been  properly  per- 
formed, etc.,  the  owner  would  not  be  liable  to  suit  until  after  an 
award  is  made  against  him.     Booth  v.  Kiefer.  47  Atl.  R.  12. 

But  the  claimant,  when  he  is  entitled  to  sue  the  owner  at  all, 
5 


66  Mechanics  Lien  Law. 

may  sue  on  a  quantum  meiniit,  for  the  partial  performance  of  an 
entire  contract  which  by  no  fault  of  his  has  not  been  completed. 
Reeve  v.  Elmendorf,  9  Vroom  125. 

In  Crane  v.  Belfatto,  69  Atl.  1085,  a  materialman  served  a  no- 
tice before  anything  was  due  the  builder.  After  that  he  con- 
sented that  the  owner  pay  the  builder  $200,  the  lirst  payment 
which  the  latter  had  then  more  than  earned.  The  balance  of  the 
contract  price  was  $600,  and  the  claimant's  bill  was  $300.  The 
owner  paid  the  builder  $500,  instead  of  the  $200,  and  the  latter 
then  quit,  and  it  cost  the  owner  $250  to  finish  the  building. 
Held  that  the  claimant  was  entitled  to  judgment  against  the 
owner,  inasmuch  as  he  should  have  had  $600  with  which  to 
finish  the  building  and  pay  the  claimant. 

PLEADING.  The  claimant  in  declaring  should  study  the 
statute  in  connection  with  the  several  matters  set  forth  in  the 
preceding  note  2,  §§  1-10.  It  was  held  in  Summerman  v.  Knowles, 
4  Vroom  202,  tlaat  the  declaration  must  allege  that  the  building 
contract  was  in  writing  and  filed.  It  is  intimated  in  Gardner  & 
Meeks  Co.  v.  Herold,  "rl  Atl.  24,  that  the  defendant  must  be  the 
owner  of  some  estate  or  interest  in  the  land  upon  which  the  build- 
ing is  erected.  It  may  be  unnecessary  to  allege  that  such  was  the 
fact,  but  it  would  be  wise  to  do  so,  and  it  would  certainly  be 
good  pleading.  The  various  other  particulars,  set  forth  in  the 
note  above  referred  to,  should  each  be  appropriately  alleged. 

It  is  said,  obiter,  in  Gardner  &  Meeks  Co.  v.  Herald,  supra,  that 
the  defendant  owner  may  plead  that  the  value  of  the  land 
and  building  is  Ises  than  the  sum  of  the  stop  notices ;  and  thereby 
restrict  the  judgment  to  a  judgment  specially  to  be  satisfied  out  of 
the  property.  That  case  was  an  action  at  law  upon  a  stop  no- 
tice served  upon  a  married  woman,  who  was  the  defendant,  upon 
whose  lands  a  building  had  been  erected,  with  her  knowledge, 
under  a  contract  made  by  her  husband  in  his  own  name,  as  owner, 
and  duly  filed,  but  without  in  any  way  indicating  that  the  wife 
was  the  real  party  to  the  transaction  as  owner.  The  husband  had 
no  estate  or  interest  in  the  land.  It  was  held  that  the  action 
against  her  would  lie,  and  the  opinion,  quite  obviously,  seeks  to 
put  that  holding  upon  a  basis  that  takes  no  particular  account 
of  the  fact  that  the  defendant  was  a  married  woman.  We  have 
considered  the  case,  and  the  previous  case  of  Earle  v.  Willetts,  27 
Vroom  334,  rev.  s.  c,  sub  nom  WiUetts  v.  Earle,  24  Vroom  270; 
and  Neill  v.  Watson.  15  N.  J.  L.  J.  138,  in  our  previous  note  1  to 
§  2  of  the  statute.  As  there  noted,  the  action  is  well  adjudged 
to-  lie  against  the  married  woman  owner,  in  such  a  case,  because 
the  statute  (§  13)  makes  her  the  notoriously  known  real  party 
to  the  contract,  as  owner,  and  so  entitled  to  the  benefit  of  the 
filing  of  the  contract,  on  the  one  hand,  and  consequently  subject 
to  answer  to  claimants  giving  her  notice.  But  unless  the  provis- 
ions of  §  7,  as  construed  in  numerous  cases  in  the  Court  of  Chan- 
cery, the  Supreme  Court,  and  the  Court  of  Errors  and  Appeals, 
are  to  be  disregarded ;  any  other  than  a  married  woman  owner, 
who  has  not  consented  in  writing  that  his  lands  shall  be  lienable 
for   the   erection    of   a   building    thereon,   cannot  need   to   invoke 


Eevision  of  1808,  §  S,  Note  5.  67 

the  filing  of  the  contract  for  such  erection  to  protect  his  lands 
from  lien  therefor;  unless  he  is  the  real  party  as  owner  to  such 
contract,  although  not  disclosed  as  such  therein.  Of  course,  if  he 
has  so  consented  that  his  lands  shall  be  lienable,  the  remedy 
against  him  is  by  lien  claim  and  suit  to  enforce  the  same,  and 
not  by  stop  notice.  Hence,  it  seems  clear  that  in  every  action 
at  law  upon  a  stop  notice,  the  defendant  owner,  if  liable  at  all, 
must  be  so  liable  because  he  has,  in  law,  been  the  one  who  con- 
tracted for  the  erection  of  the  building,  whether  as  the  known, 
or  as  the  undisclosed,  principal:  and  this  being  so,  his  liability 
to  claimants  upon  s1x)p  notice  must  be  a  liability  to  answer  to 
them  to  the  extent  of  the  unpaid  contract  price  due  to  the  builder, 
and  not  otherwise.  Manifestly  a  special  plea  that  the  land  and 
building  are  worth  less  than  the  notices,  would  confess  the  plain- 
tiff's declaration  without  avoiding  it. 

A  plea  that  at  the  time  the  notice  was  served  the  builder  owed 
the  claimant  less  than  the  amount  claimed  in  the  notice  and  de- 
mand is  a  good  plea  in  bar.  Taylor  v.  Wahl,  40  Vroom  471. 
Such  a  plea  is,  in  effect,  a  denial  of  a  material  allegation  of  the 
declaration,  and  the  matter  of  it  could  be  given  in  evidence 
und'er  the  general  issue,  as  the  action  at  law  upon  a  stop  notice 
is  necessarily  an  action  on  the  the  case  upon  an  implied  assump- 
sit. Strictly  by  the  rules  of  pleading,  such  a  special  plea  would 
be  bad  on  special  demurrer  (motion  to  strike  out),  as  amounting  to 
the  general  issue,  but  there  is  a  tendency  observable  to  discour- 
age such  motions,  as  savoring  of  undue  technicality. 

It  is  pertinent  to  observe  that  if  it  be  not  fatal  for  the  claim- 
ant's notice  and  demand  to  specify  too  large  an  amount,  as  the 
amount  due,  when  the  excess  is  the  result  of  honest  mistake;  the 
fact  of  such  honest  mistake  would  be  a  good  reply  to  such  a  special 
plea.  As  has  been  above  noted  (note  2,  §  7),  we  think  an  ex- 
cessive claim  is  always  fatal.  As  said  in  Reeve  v.  Elmendorf,  0 
Vroom  125,  JUDGMENT  AT  LAW  ON  A  STOP  NOTICE 
CANNOT  BE  FOE  A  LESS  AMOUNT  THAN  THAT  MEN- 
TIONED IN  THE  NOTICE  AS  DEMANDED. 

The  owner  is  not  bound  by  a  judgment  obtained  by  the  claim- 
ant against  the  builder,  see  note  1,  to  §  4,  post. 

AMOUNT  OF  RECOVERY.  It  would  seem  that  costs  recov- 
ered by  the  claimant  in  a  suit  on  his  claim  against  the  builder, 
could  not  be  i-ecovered  in  the  suit  against  the  owner.  Anderson 
V.  Huff,  4  Dick.  349. 

ALLOWANCE  TO  OWNER,  for  the  amounts  due  on  stop  no- 
tices cannot  be  made  in  the  suit  at  law  against  him,  unless  he  has 
paid  them,  Wightman  v.  Brenner,  11  C.  E.  Green  489;  but,  in 
such  a  case,  the  owner  may  have  an  injunction,  to  restrain  the 
build'er  from  enforcing  a  judgment  recovered  against  him  for 
the  contract  price.     Wightman  v.  Brenner,  supra. 

INTERPLEADER  SUIT.  In  a  proper  case,  the  owner  who 
has  been  served  with  stop  notices  may  file  an  interpleader,  bring- 
ing, or  offering  to  bring,  the  balance  that  is  due  on  the  contract 
into  court. 

For  the  practice  in  such  case,  see  Siipt.  v.  Heath,  2  McCart.  22 ; 


68  Mechanics  Lien  Law. 

Kirtland  v.  Moore,  13  Stew.  106;  and  Hall  v.  Baldwin,  18  Stew. 
858.  See  also  Ter  Knile  v.  Reddick,  39  Atl.  1062,  as  to  what 
such  a  bill  should  allege;  Schmidt  v.  Eitel.  4  Kob.  8,  that  it  must 
allege  that  there  was  a  written  building  contract  and  that  it  was 
filed;  Turner  v.  Miller,  61  Atl.  741,  that  such  a  bill  should  not  be 
filed  when  there  is  no  real  doubt  as  to  how  the  fund  is  to  be 
applied;  and  Ereutz  v.  Cramer,  19  Dick.  648;  English  v.  Warren, 
20  Dick.  30,  that  the  complainant  cannot  have  costs  if  he  alleges 
and  tenders  less  than  he  is  found,  upon  hearing,  to  actually  owe. 

This  remedy  has  been  sought  in  a  number  of  other  reported 
cases;  and,  as  it  takes  some  time  to  ascertain  what  these  cases 
are,  the  list  of  them  is  hereto  appended,  omitting  those  already 
flloov6  CI  tod  I 

Adams  v.'  Wells,  19  Dick.  211; 

Bayonne  Assn.  v.  Williams,  43  Atl.  669;  14  Dick.  617; 

Bayonne  Assn.  v.  Williams,  42  Atl.  172 ;  12  Dick.  503 ; 

Bd.  of  Education  v.  Duparquet,  5  Dick.  234; 

Bowlhy  V.  Willison,  11  N.  J.  L.  J.  42; 

Burnett  v.  Jersey  City,  4  Stew.  341; 

Bechhard  v.  Rudolph,  2  Kob.  315;   Id.  740; 

Chosen  Freeholders  v.  Lindsley,  14  Stew.  189; 

Donnelly  v.  Johnes,  44  Atl.  180; 

Dunn  V.  Stohern,  16  Stew.  401; 

Daly  V.  Somers  Co.,  4  Kob.  343;  1  Buch.  307; 

Evans  v.  Lower,  1  Kob.  232; 

Edge  V.  McClay,  64  Atl.  969; 

Flaherty  v.  Atlantic  Co.,  44  Atl.  186; 

Freedman  v.  Sandknop,  8  Dick.  243; 

Fehling  v.  Goings,  1  Rob.  375; 

Foster  v.  Rudderow,  3  Atl.  694; 

Leary  v.  Lamont,  42  Atl.  97; 

McNab.  etc.,  Co.  v.  Paterson,  etc.,  Co..  1  Buch.  133;   2  Id.  929; 

Smith  V.  Dodge,  etc.,  Co.,  44  Atl.  639; 

South  End  Co.  V.  Harden,  52  Atl.  1127; 

St.  Peters  Church  v.  Van  Note,  21  Dick.  78; 

Turner  v.  Miller,  61  Atl.  741; 

Veitch  V.  Clark,  1  Kob.  57; 

Weaver  v.  Atlantic  Co.,  40  Atl.  858; 

Willi<ims  V.  Bradford,  21  Atl.  331. 

Proceedings  where  contractor  disputes  the  employe's  or 
materialman's  claim.  Notice  to  claimant ;  suit  to  establish 
claim;  limitation. 

rJ       4.  When  a   notice  or  notices  shall  be  served  upon  such 
r.  N    o^\'ner  or  owners  by  any  journeyman,   laborer  or  material- 
^^      man,  under  the  third  section  of  this  act,  and  notice  thereof 
'         shall  have  l^een  given  by  such  owner  or  owners  to  the  mas- 
ter workman  or  "contractor,  as  required  by  said  section,  and 
said  master  workman  or  contractor  shall,  within  five  days 


Revision  of  1898,  S  5.  69 


after  receiving  the  notice  aforesaid,  notify  in  writing  the 
journeyman,  laborer  or  person  who  has  furnished  mate- 
rials that  he  disputes  his  or  their  claim,  and  requests  him 
or  them  to  establish  the  same  by  judgment,  the  owner  shall 
not  pay  the  claim  until  it  is  so  established  ;^  {a\nd  the  jaiir- 
neymmi,  laborer  or  person  who<  has  furnished  materials 
shall  forfeit  all  right  to  the  money  which  may  he  due  or 
may  grow  due  t&  the  conivactor  from  the  owtier,  unless  he 
shall  begin  suit  to  estohlish  his  clavm  a\gainst  the  contractor 
within  sixty  days  from  the  service  by  the  contractor  upon 
said  journeyman,  laborer  or  person  who  has  furnished  ma- 
terials of  the  notice  aforesaidY ;  provided,  the  master  work- 
man or  contractor  shall  notifv  the  owner  in  w^riting  that  he 
has  given  the  aforesaid  notice  to  said  journeyman,  laborer 
or  materialman. 

1899,  p.  31,8,  §  1;  1898,  p.  538,  §  4;  1895,  p.  313,  §  3. 

t 

The  amendment  of  1899  inserts  the  words  in  parenthesis  (  —  ). 

The  act  of  3895  was  the  first  to  make  any  provision  on  this 
subject,  and  this  was  re-enacted  by  the  act  of  1898  without  change. 
The  amendment  of  the  previous  section,  by  the  act  of  1905,  p. 
311,  omitted,  as  is  thereunder  noted,  to  make  the  necessary  cor- 
responding changes  in  this  section.  It  should,  of  course,  be 
amended  so  as  to  make  its  provisions  applicable  to  all  who  may 
be  claimants  under  such  preceding  section. 

1.  Such  judgment,  by  the  claimant  against  the  builder,  when 
obtained,  will  not  be  res  adjudicate,  as  against  the  owner.  It  may 
be  given  in  evidence,  in  the  claimant's  action  at  law  against  the 
owner,  upon  his  stop  notice,  to  show,  prima  facie,  the  amount 
due;  but  it  will  not  prevent  the  owner  from  pleading  and  prov- 
ing, if  he  can,  that  the  claim  is  in  fact  excessive.  Taylor  v. 
Wahl,  40  Vroom  471. 

Costs  recovered  in  this  suit  are  not  a  lien  on  the  fund.  Ander- 
son V.  Huff,  4  Dick.  349. 

2.  The  claimant,  presumably,  cannot  escape  the  consequence^^  of 
this  clause,  by  serving  a  new  stop  notice  after  he  is  notified  to 
bring  his  suit.     Sewall  v.  Hawkins,  17  Vroom  161. 

Owner's  liability  in  case  he  makes  advance  payments. 
Inchoate  lien,  of  employes  and  materialmen,  on  the  con- 
tract price. 

5.  If  the  owner  or  owners  of  any  building  or  other  prop- 
erty which,  by  this  act,  is  made  the  subject  of  liens  for  or 
toward  the  construction,  altering,  repair  or  improvement  of 


70  Mechanics  Lien  Law. 

wliicli  labor  or  services  have  been  performed  or  materials 
furnished  by  contract,  duly  filed,  shall,  for  the  purpose  of 
avoiding  the  provisions  of  this  act,  or  in  advance  of  the  terms 
of  such  contract,  pay  any  money  oi'  other  valuable  thing  on 
such  contract,  and  the  amount  still  due  to  the  contractor, 
after  such  payment  has  been  made,  shall  be  insufficient  to 
satisfy  the  notices  served  in  conformity  with  the  provisions 
of  this  act,  such  owner  or  owners  shall  be  liable  in  the  same 
manner  as  if  no  such  payment  had  been  made. 

1898,  p.  538,  §  5;  1895,  p.  SIS,  §  5. 

The  act  of  1898  re-enacts  without  change  the  act  of  1895,  which 
was  the  first  provision  of  this  nature.  This  section  and  the  next 
succeeding-  one  are  considered  together  in  the  notes  under  the 
latter. 

Wages  made  a  preferred  claim,  ^lether  on  lien  or  under 
stop  notice.    Preferences  of  stop  notices  over  orders. 

6.  In  all  cases  journeymen  or  laborers  shall  have  priority 
and  preference  over  any  employers  of  labor,  contractors-  or 
materialmen  for  the  payment  of  wages,  without  reference  to 
the  date  when  said  journeymen  or  laborers  shall  have  filed 
the  lien  or  served  the  notices  provided  for  in  this  act; 
{laborers  or  maiermlmen  giving  notices  in  accou'dance  vjith 
the  provision's  of  the  third  section-  shall  have  priority  and  pre- 
ference in  the  disposition  of  the  moneys  due  and  to  grow  d^ie 
upmi  the  contract  over  mny  persons  claiming  said  mmieys  or 
any  part  thereof  by  reason  of  order  or  orders  thereon  or  asr- 
signment  thereof). 

1898,  p.  5S8,  §  6;  1895,  p.  SIS,  §  7. 

The  words  in  parenthesis  (  —  )  were  inserted  by  the  revision  of 
1898,  otherwise  the  section  is  the  same  as  it  stood  in  the  act  of 
1895,  which  was  the  first  provision  of  this  nature. 

THE  LAW.  PRIOR  TO  THE  ENACTMENT  OF  THE 
EOREGOING  SECTIONS,  on  the  question  of  the  respective 
priorities  of  various  claimants  to  the  fund  in  the  owner's  hands, 
may  be  briefly  reviewed  as  follows: 

As  already  stated,  under  section  3,  note  3,  it  was  settled  that  a 
stop  notice  operated  as  well  on  moneys  to  grow  due  as  on 
moneys  that  had  become  due  at  the  time  of  its  service.  But  al- 
though this  was  settled,  and  although,  as  said,  in  Wightman  v. 
Brenner,  11  C.  E.  Gr.  489,  the  claimant  under  a  stop  notice 
had  a  ri^ht  of  recourse  against  the  fund,  as  well  as  a  right  of 


Revision  of  1898,  §  6.  Tl 

action  against  the  owner;  it  was  held  that  he  had  no  lien  on  the 
fund,  prior  to  the  service  of  his  notice,  and  that,  therefore,  the 
contractor  was  at  liberty,  by  order  or  assignment,  to  dispose  of 
the  moneys,  secured  to  him  by  the  contract;  and  that,  to  the  ex- 
tent that  he  did  this,  before  any  stop  notice  was  served,  the  fund, 
upon  which  such  notice  could  operate,  was  lawfully  depleted,  in 
respect  of  what  was  to  grow  due  as  well  as  of  what  had  become 
due  to  him,  on  the  contract.  Craig  v.  Smith,  8  Vroom  549 ;  Shan- 
non V.  Hohoken,  10  Stew.  123;  Kirtland  v.  Moore,  13  Stew.  106; 
Burnett  v.  Jersey  City,  4  Stew.  341;  Chosen  Freeholders  v.  Linds- 
ley,  14  Stew.  189;  Lanigan  v.  Bradley,  Co.,  5  Dick.  201;  Board 
of  Education  v.  Duparquet,  5  Dick.  234;  Mayer  v.  Mutchler,  21 
Vroom  162;  Hall  v.  Baldwin,  18  Stew.  858;  Supt.  v.  Heath,  2 
McCart.  22. 

But,  as  the  fund  was  subject  to  the  disposal  of  the  contractor, 
so  it  was  also  subject  to  the  attack  of  his  creditors,  with  this 
difference — that  their  attack,  by  supplementary  proceedings  (and 
the  same  is  probably  true  of  an  attack  by  attachment)  could  only 
reach  moneys  which  had  become  due  to  the  contractor  at  the 
time  of  such  attack.  Willison  r.  Salmon,  18  Stew.  257.  As 
we  have  already  noticed  (§  2,  note  2),  a  general  creditor  of  the 
contractor,  holding  an  order,  was  held  to  stand  the  same  as  an 
assignee  wlio  had  furnished  him  with  labor  and  materials;  and, 
from  the  time  of  the  decision  of  Superintendent  v.  Heath,  2  Mc- 
Cart. 22,  it  was  held,  that  holders  of  orders,  and  claimants  under 
stop  notice,  must  each  be  paid  out  of  the  fund,  so  far  as  it  was 
subject  to  their  claims,  in  the  order  of  their  priorities  and  not 
pro  rata. 

THE  LAW  UNDEE  THE  ENACTMENT  OF  1895. 

The  iirst  case  to  arise,  after  the  enactment  of  §5,  was,  Binns  v. 
Slingerland,  10  Dick.  55;  s.  c,  overruled  on  appeal,  11  Dick.  413. 
In  this  case,  the  Court  of  Errors  held,  that,  by  proihibiting  the 
owner  from  making  any  payment  in  advance  of  the  terms  of  the 
contract,  the  legislature  evinced  an  intention  to  give,  to  laborers 
and  maierialmeii,  an  inchoate  lien  upon  the  contract  liability  of 
the  owner,  until  that  liability  matures,  according  to  the  terms 
of  the  contract;  that  such  inchoate  lien  becomes  i)erfected,  on 
the  service  of  a  stop  notice  before  such  liability  matures,  but  ex- 
pires, on  such  maturity,  if  no  such  notice  is  given;  and  that, 
therefore,  v/orkmen  and  materialmen  who  sei-ve  stop  notices  in 
season,  have  priority  over  persons  to  whom  the  conti'actor  may 
have  assigned,  before  their  notices  were  served. 

Shortly  after  this  decision,  the  case  of  Leary  v.  Lamont,  42  Atl. 
K.  97,  came  before  Vice  Chancellor  Emery,  and  the  case  of  Bay- 
onne,  etc.,  Assn.  v.  Williams,  42  Atl.  R.  172,  before  Vice  Chancel- 
lor Pitney.  Both  Vice  Chancellors  held  that,  inasmuch  as  the 
statute,  as  constructed  in  Slingerland  v.  Binns.  gave  to  claimants 
under  stop  notices,  an  inchoate  lien,  in  advance  of  their  notices, 
their  priorities^  inter  se,  could  not  be  deteraiined,  with  regard 
to  the  dates  on  which  such  notices'  were  sei*ved;  and  that,  there- 
fore, they  must  share  pro  rata  in  the  fmid.  This  ruling  was  re- 
versed by  the  Court  of  Errors,  in  Bayonne,  etc.,  Assn.  v.  Williams, 


72  Mechanics  Lien  Law. 

43  Atl,  K.  669,  and  it  was  established,  that  such  claimants,  as 
between  themselves,  must  be  paid  according  to  the  priority,  in 
service,  of  their  notices,  and  not  pro  rata. 

It  had  also  been  held,  by  Vice  Chancellor  Pitney,  that  an  order 
given  by  the  contractor  to  a  laborer  or  materialman,  and  pre- 
sented to  the  owner  was  as  effectual,  in  equity,  as  a  stop  notice 
could  be,  in  i)erfecting  the  inchoate  lieu  of  such  claimant;  but  this 
too  was  overruled  by  the  Court  of  Errors  which  held  that,  on  the 
contrary,  the  inchoate  lien  can  only  be  perfected  by  the  statutory 
method  of  demand,  refusal,  and  service  of  notice. 

In  the  meanwhile,  V.  C.  Grey  had  decided,  in  Weaver  v.  Atlan- 
tic, etc.,  Co.,  40  Atl.  E.  858,  that  the  inchoate  lien,  given  by  §  5, 
arose  only  in  cases  where  a  contract  had  been  duly  filed. 

The  next  case,  Donnelly  v.  Johties,  4A  Atl.  K.  180,  also  came  be- 
fore V.  C.  Grey,  for  decision,  and,  after  a  careful  review  of  the 
decisions  of  the  Court  of  Errors  above  referred  to,  he  held,  that 
as  each  installment  of  the  contract  price  becomes  due,  it  is  liable, 
first,  to  claimants  who,  prior  to  that  time,  have  served  stop  no- 
tices. If  it  more  than  meets  these  notices,  the  residue  is  at  the 
disposal  of  the  contractor,  and  liable  to  the  attack  of  his  credi- 
tors; if  it  is  insufficient  to  satisfy  the  stop  notices,  they  will 
operate,  so  far  as  unsatisfied,  on  the  next  installment,  and  so  on; 
but  no  stop  notice  can  operate,  as  a  prefereoice,  on  any  part  of 
the  owner's  liability  which  has  matured  before  such  notice  is 
served;  because  the  inchoate  lien,  quoad  such  matured  liability, 
is  lost  unless  such  notice  is  served  on  or  before  the  day  of  such 
maturity. 

In  all  the  cases  above  cited,  the  ruling  in  Binns  v.  SlingerUmd, 
was  the  basis  of  decision;  and  the  statement,  that  the  inchoate 
lien,  given  by  virtue  of  the  act  of  1895,  exists  vuitil  the  ma- 
turity of  the  owner's  liability,  but  expires  on  such  maturity,  if 
not  perfected  by  notice  before  then  given,  a  statement  which  was 
plainly  obiter  in  the  Binns  case,  was  more  or  less  explicitly  adopted 
in  each  of  them,  as  in  the  DomieUy  case,  as  a  precisely  correct 
•statement.  The  same  may  be  said  of  the  succeeding  decisions  in 
Flaherty  v.  Atlantic,  etc.,  Co.,  44  Atl.  186;  Smith  v.  Dodge,  etc 
Co.,  44  Atl.  639;  Persoti  v.  Herring,  44  Atl.  753,  the  last  named 
being  a  decision  of  the  Court  of  Errors  and  Appeals.  That  such 
was,  therefore,  the  correct  exposition  of  the  law,  as  it  then  stood, 
may  be  taken  as  settled,  beyond  any  question,  by  those  decisions; 
air  of  which,  however,  were  in  cases  arising  before  the  revision 

£   "1  RQft 

THE  LAW  SINCE  THE  REVISION  OF  1898.  By  this  re- 
vision of  1898  the  concluding  clause  of  §  6,  as  it  now  stands, 
was,  for  the  first  time,  added,  and  that  modification  of  the 
statute  might  be  deemed  to  have  a  material  effect  m  modifica- 
tion of  the  conclusion  reached  in  Binns  v.  Slingerland  and  the 
cases  above  cited,  in  respect  of  the  duration  of  the  inchoate  lien 
of  claimants  entitled  to  give  a  stop  notice.  The  decisions  m 
cases  arising  since  the  revision  of  1898,  so  far  as  concerns  the 
point  in  question,  do  not,  however,  give  that  clause  any  consider- 
ation    Thev  do  not  even  refer  to  it,  or  mention  it,  and  their  rea- 


Revision  of  1898,  §  6.  73 


soning  plainly  is  based  upon  the  theory  that  the  fifth 
section  of  the  statute  is  the  only  provision  in  it  which  confers 
any  such  inchoate  lien.  They,  therefore,  adopt  the  dictum  of  the 
Binns  case,  as  the  correct  statement  of  such  lien's  duration,  as 
plainly  they  should  do,  if  that  theory  is  true. 

The  cases  referred  to  are  Blauvelt  v.  Fuller,  48  Atl.  538;  and 
Taylor  v.  Reed,  52  Atl.  579,  both  decided  in  the  Supreme  Court; 
and  Edge  v.  McClay,  64  Atl.  969,  decided  in  the  Court  of  Chan- 
cery. Blauvelt  v.  Fuller  is  not  really  in  point,  in  any  way,  upon 
the  matter  in  question.  There  the  owner's  liability  matured  on 
August  28,  1899,  and  he  then  paid  the  builder  all  that  was  due 
him  except  the  sum  of  $530,  having  been  previously  served  with 
a  materialman's  stop  notice  for  $500.  Blauvelt's  stop  notice  for 
$927.84  was  served  September  1,  1899.  Upon  any  possible  theory, 
as  to  the  duration  of  the  inchoate  lien,  the  fund  in  the  owner's 
hands,  at  the  time  his  stop  notice  was  served,  was  only  $530,  and 
$500  of  this  was  subject  to  the  prior  right  of  the  previous  stop 
notice.  It  was,  therefore,  held  that  his  notice  reached  only  the  $30. 
The  opinion  does  not  refer,  and  should  not  have  referred  either 
to  the  Binns  case  or  to  §§  5  or  6. 

In  Taylor  v.  Reed,  the  filed  contract  provided  for  a  final  pay- 
ment or  $1,500.  The  owner  paid  the  builder  $1,000  of  this  in 
advance  of  its  due  date.  After  the  due  date  the  plaintiif  gave 
his  notice,  but  it  was  held  that  the  $1,000  payment  was  good  against 
him.     This  case  is  in  point. 

In  Edge  v.  McClaaj,  the  owner's  right  to  discharge  his  debt  to 
the  builder  matured  on  January  2,  1906.  Claimant  Horner  gave 
his  notice  on  January  3,  1906.  It  was  held  that  other  defend- 
ants claiming  by  assignments  given  by  the  builder  before  Jan- 
uary 2,  1906,  took  the  fund,  to  the  exclusion  of  Horner.  This 
case  is   also  in  point. 

The  case  of  Kreutz  v.  Cramer,  19  Dick.  648,  should  here  be 
mentioned.  In  that  case  an  installment  of  $960  matured  on 
May  25,  1902.  On  May  27,  1902,  Cramer  served  his  notice,  while 
such  matured  installment  was  still  unpaid  by  the  owner,  and 
unassigned  by  the  builder.  Upon  the  contention  that  Cramer's 
notice  did  not  reach  this  installment,  because,  as  ruled  in  the 
Binns  case,  his  inchoate  lien  had  expired  on  May  25,  1902,  it 
was  held  that  the  expiration  of  the  inchoate  lien  left  the  money 
still  liable  to  be  impounded  by  a  notice  put  in  before  it  has  in 
fact  been  paid  to,  or  assigned  by,  the  builder;  and  that  the  fact 
that  there  are  still  other  moneys  yet  to  grow  due,  which  may  suf- 
fice to  meet  the  notice  put  in,  does  not  enable  the  owner  to  dis- 
regard such  notice. 

In  Taylor  v.  Reed  and  Edge  v.  McClay,  as  is  above  stated, 
it  is  apparently  assumed  that  no  inchoate  lien  is  given  by  the 
statute,  unless  by  its  fifth  section.  Is  that  assumption  correct? 
The  concluding  clause  of  §  6  says— that  "laborers  or  material- 
men giving  notices,  etc.,  shall  have  priority  and  preference  in 
the  disposition  of  the  moneys  DUE  and  to  grow  due  upon  the 
contract  over  any  persons  claiming  said  moneys  or  any  part 
thereof  by  reason  of  order  or  orders  thereon  or  assignment  there- 


T4  Mechanics  Lien  Law. 

of."  Now  it  would  seem  quite  plain  that,  if  §  'j  evinces  a  legisla- 
tive intent  to  give  laborers  and  materialmen  an  inchoate  lien,  by 
its  prohibition  of  advance  payments;  this  clause  of  §  6  evinces 
a  similar  intent  just  as  obviously  by  giving  such  claimants  the 
priority  and  preference  which  it  does.  It  is  suggested,  there- 
fore, that  that  is  a  question  which  should  receive  deliberate  con- 
sideration, and  that  if  an  inchoate  lien  is  given  by  this  clause, 
the  duration  of  such  lien  must  also  be  a  qviestion  to  be  determined 
by  a  careful  consideration  of  its  terms,  in  the  light  of  their  ob- 
vious legislative  purpose.  Upon  that  matter  the  following  sug- 
gestions are  appended: 

Prior  to  the  revision  of  1898,  it  was  plain  that  the  inchoate 
lien  recognized  in  the  Bin  us  case  could  only  have  been  posited  up- 
on the  inference  there  drawn  from  the  prohibition  of  advance  pay- 
ments contained  in  §  5.  It  was,  therefore,  as  the  law  then  stood, 
a  proper,  if  not  a  necessary  inference  also,  that  the  duration  of 
such  inchoate  lien  must  be  co-extensive  with  the  period  within 
which  such  prohibition  operated,  and  must  cease  when  it  ceased, 
that  is,  with  the  maturity  of  the  owner's  liability.  But  now,  if 
§  6  also  gives  laborers  and  materialmen  an  inchoate  lien,  by  giving 
them  "priority  and  preference  in  the  disposition  of  the  moneys 
due  and  to  grow  due,  etc.."  over  persons  claiming  by  order  or  as- 
sigmiient;  the  duration  of  such  inchoate  lien  must  be  determined 
by  those  terms,  and  the  purpose  which  the  legislature  had  in  view. 
It  would  seem,  then,  to  follow  that  such  inchoate  lien  continues, 
as  against  assignees  or  holders  of  orders,  and,  therefore,  as 
against  the  builder's  own  demand  for  payment,  beyond  the 
mere  arrival  of  the  time  when  the  owner  may  rightfully  dis- 
charge his  liability  to  the  builder,  and  until  he  has  actually  exer- 
cised that  right.  That  is  to  say,  the  maturing  of  the  contract  may 
be  deemed  to  confer  upon  the  owner  the  right  to  pay  the  builder 
without  enabling  the  latter  to  demand  that  he  do  so,  until  he 
can  show  that  there  are  no  laborers  or  materialmen  who  may 
make  claim. 

In  this  view,  the  inchoate  lien  of  such  claimants  would  be  liable 
to  be  defeated  by  the  owner's  exercise  of  his  right  to  pay  before 
a  stop  notice  came  in,  but  until  so  defeated  it  would  continue 
to  exist,  as  against  the  builder  or  his  assignees. 

The  assertion  of  such  a  purpose  is  not  an  assertion  of  some- 
thing which  it  is  impossible  or  improbable  that  the  legislature 
could  intend.  On  the  contrary,  the  legislature  has  heretofore 
(by  the  acts  of  1890,  p.  479,  and  1892,  p.  358,  both  repealed  in 
1895)  tried  the  exi)ermient  of  protecting  claimants  by  the  similar 
expedient  of  forbidding  an  owner  to  discharge  his  liability  unless 
he  first  saw  that  all  possible  claimants  were  satisfied. 

In  the  theory  above  advanced,  the  right  of  the  owner  to  dis- 
charge his  liability,  by  payment  after  its  maturity  to  the  builder 
or  his  assignee,  before  any  stop  notice  intervened,  would  be  based 
upon  the  fact  that  the  statute  only  forbids  Mm  to  make  any 
advance  payment.  On  the  other  hand,  the  denial  of  any  right, 
on  the  part  of  the  builder,  to  demand  the  payment  of  the  money 
earned,  so  long  as  there  were  any  unsatisfied  laborers  or  material- 


Revision  of  1898,  §  6.  75 

men,  would  be  rested  on  the  express  words  of  the  statute,  and  the 
reasonable  inference  therefrom,  that  the  statute  intends  that  he 
himself  may  not  demand  what  it  forbids  him  to  give  another  the 
right  to  demand. 

From  this  theory  it  would  result  that  any  orders  or  assign- 
ments given  by  the  builder  at  any  time,  but  not  in  fact  paid  by 
the  owner  after  his  right  to  discharge  his  liability  has  accrued, 
and  before  a  stop  notice  intervenes,  would  be  defeated  by  such 
a  notice  coming  in. 

It  would  also  be  in  harmony  with  this  theory,  to  hold,  that 
the  owner's  right  to  discharge  his  liability  by  payment  made  af- 
ter such  right  has  accrued,  could  not  relieve  him  from  the  con- 
sequences of  an  advance  payment  which  §  5  denounces;  and  that 
he  would  be  precluded  from  pleading  or  proving  in  defense,  as 
against  any  laborer  or  materialman,  any  payment  that  he  had 
made  so  in  advance.  In  short,  that  any  such  payment,  in  its 
legal  effect  in  respect  of  his  liability  to  a  claimant,  shall  be  just 
what  the  statute  says — "the  same  as  if  no  such  payment  had 
been  made;"  just  as  a  Sunday  bargain  is  the  same  as  though 
it  had  never  happened. 

It  is  hardly  necessary  to  say  that  the  views  thus  suggested  are 
not  presented  as  exhausting,  by  any  means,  all  that  may  be  urged, 
pro  or  contra,  in  the  matter;  but  it  is  thought  that  there  is  a 
real  question  for  the  courts  to  consider  in  the  premises.  The 
cardinal  thing  that  should  be  borne  in  mind,  as  it  seems  to  the 
writer,  is,  that  when  the  legislature  says  that  laborers  and  ma- 
terialmen shall  have  priority  and  preference  as  to  the  moneys 
due,  it  means  that  they  shall  have  all  that  is  necessary,  in  order 
to  secure  to  them  such  priority  and  preference. 

Attention  is  also  directed  to  the  case  of  Adams  v.  Wells,  19 
Dick.  211.  In  this  case  the  final  payment  matured  on  April  7, 
1902.  Defendant  Beatty  had  an  assignment  dated  January  20, 
1902,  of  which  the  owner  had  notice  on  April  8,  1902.  After 
that  other  defendant  claimants  served  stop  notices;  and,  on  in- 
terpleader, contended  that  they  were  entitled  to  preference  over 
Beatty,  as  being  within  the  provision  of  the  last  clause  of  §  6. 
Without  determining  whether  that  contention  wovdd  have  been 
good  if  the  claimants  had  been  within  the  class  of  persons  there 
mentioned,  and  without  intimating  that  it  would  not  have  been, 
the  decision  was  that  the  claimants  were  not  within  such  class, 
because  they  were  sub-contractors. 

In  this  case,  as  in  Donnelly  v.  Johnes,  44  Atl.  180,  it  was  held 
that  persons  claiming  preference,  under  §  6,  must  show  that  they 
are  within  the  specified  class,  and  that  it  is  not  to  be  assumed, 
without  proof,  that  they  are. 

It  may  be  that,  in  Taylor  v.  Reed  and  Edge  v.  McClay,  the 
claimants  might  have  been  precludied  on  similar  grounds. 

APPORTIONING  THE  FUND.  There  must,  of  course,  be 
a  fund  to  to  be  apportioned.  That  is,  the  claimants  can  have 
recourse  to  that  only  which  the  contractor,  but  for  them,  would 
be  entitled  to  receive  from  the  owner.  If  there  is  such  a  fund, 
its  apportionment  must  be  determined  by  the  order  in  which  the 


76  Mechanics  Lien  Law. 

various  claimants  have  established  a  legal  lien  upon  it.  Kow  there 
is  nothing  in  the  statute  which  gives  any  other  claimant  a  prefer- 
ence over  a  creditor  of  the  contractor,  who  has  established  a  lien 
by  process  of  law;  and  it  is  a  possibility,  that  an  attaching  credi- 
tor might  attach  the  fund,  the  day  after  the  contract  had  been 
completed  and  the  price  had  become  due,  and  before  any  stop 
notice  had  been  served,  or  after  some  such  notices  and  before 
others.  In  such  a  case,  we  think  that  the  attaching  creditor  would 
be  entitled,  on  any  theory  as  to  the  effect  of  §  6,  to  have  his  claim 
satisfied  according  to  the  respective  priority  of  the  notices  and  of 
his  attachment.  Eliminating  all  such  liens  from  our  present  con- 
sideration, the  application  of  the  fund  may  differ,"  according  as 
the. effect  of  §  6  is  held  the  one  way  or  the  other.    And, 

First, 
On  the  assumption  that  the  preferences,  given  by  §  6,  affect, 
as  well  moneys  due  before  notices  are  served,  as  moneys  to  grow 
due  thereafter;  the  wJiole  fund  must  then  be  appropriated  as  fol- 
lows, viz. :  •        X   1,  • 

1.  To  the  claims  of  wage  workers,  in  the  order  of  service  of  then- 
notices  ; 

2.  The  residue  then  left,  to  all  other  claimants  by  stop  notice,  in 
the  order  of  service  of  their  notices; 

3.  The  residue  then  left,  to  the  holders  of  orders  or  assign- 
ments given  by  the  contractor ;   and 

4.  The  residue  then  left,  to  the  contractor. 

Second, 
On  the  assumption  that  the  preferences,  given  by  §  6,  affect  only 
the  moneys  to  grow  due  when  notice  is  served,  so  much  of  the  fund 
only  as  became  due  on  or  after  the  service  of  a  notice  or  notices, 
must  be  applied,  as  above  indicated,  to  that  notice,  or  those  notices, 
according  to  their  preferences  and  priority  of  service;  and  the 
residue  of  the  whole  fund  must  be  appropriated: 

1.  To  the  holders  of  orders,  or  assignments,  and  to  unsatisfied 
claimants  imder  stop  notices,  in  the  order  of  time  of  each  one's 
order,  assignment,  or  notice;   and 

2.  The  residue,  if  any,  to  the  contractor. 

AN  ORDER  OBTAINED  BY  A  FRAUD  practised  upon  the 
builder  by  the  holder  may  be  attacked  by  claimants  under  stop 
notice.    English  v.  Warren,  20  Dick.  30.  ,      .     ,      , 

ALTERATION  OF  CONTRACT  TERMS.  As  the  inchoate 
lien  of  the  laborers  or  materialmen  precludes  the  contractor  from 
making  an  effective  disposition,  as  against  them,  of  the  moneys 
secured  to  him  by  the  contract,  by  direct  order  of  assignment; 
so  it  must  necessarily  limit  his  power  to  affect  their  interests  det- 
rimentally in  any  indirect  way.  Accordingly,  m  Smith  v.  Dodge 
&  Bliss  Co.,  44  Atl.  R.  639,  the  Court  of  Errors  held,  that,  the 
terms  of  the  contract  could  not  be  altered,  by  an  agreenient  be- 
tween the  contractor  and  the  owner  made  after  it  was  hied,  so 
as  to  impair  or  defeat  the  claims  of  materialmen  or  laborers,  as 


Eevisioj^  of  1898,  §  7.  77 

by  reducing  the  contract  price;  unless  the  contract  as  filed  au- 
thorized and  provided  for  such  an  alteration. 

So  in  South  End  Imp.  Co.  v.  Harden,  52  Atl.  1127,  it  was  held 
that  when  the  contract  provides  that  the  parties  might  agree  to 
alterations;  and  they  did  agree  thereafter  upon  such,  such  agree- 
ment was  a  new  contract  and  the  work  thereunder  not  in  pursu- 
ance of  the  original  contract.  See  notes  to  form  of  building  agree- 
ment post. 

In  Daly  v.  Somers  Co..  4  Robinson,  343;  s.  e.  aff.  1  Buch. 
307,  it  was  held  that  the  owner  cannot  safely  waive  the  produc- 
tion of  the  architect's  certificate;  as  he  may  become  liable  to 
claimants,  if  he  pays  without  first  obtaining  it,  when  it  is  not 
unreasonably  or  fraudulently  withheld  by  the  architect. 

In  Veitch  v.  Clark,  1  Rob.  57,  it  is  held  that  the  owner  may 
safely  pay  upon  the  architect's  certificate,  although  in  some  slight 
particulars  there  is  work  still  undone;  when  the  owner  and  archi- 
test  both  act  in  good  faith,  and  the  undone  work  is  such  as  it  is 
customary  to  leave  undone,  to  aid  the  progress  of  the  work. 

Land  not  liable  to  lien  unless  building"  be  erected  with 
owner's  consent  in  -writing,  acknowledged  and  recorded. 

7.  If  any  building  be  erected  bj  a  tenant  or  other  person 
than  the  owner  of  the  land,^  then  only  the  building  and  the 
estate  of  such  tenant  or  other  person  so  erecting  such  build- 
ing,^ shall  be  subject  to  the  lien  created  by  this  act  and  the 
other  provisions  thereof,  unless  sucli  building  be  erected  by 
the  consent  of  the  owner  of  such  lands  in  writing,^  which 
writing  may  be  acknowledged  or  proved  and  recorded,*  as 
deeds  are,  and  when  so  acknowledged  or  proved  and  recorded, 
the  record  thereof  and  copies  of  the  same,  duly  certified,  shall 
be  evidence  in  like  manner. 

1898,  p.  538,  §  7;   1853,  p.  Jf37,  §  ^;   Rev.  1871^,  §  4. 

This  section  has  remained  unchanged  in  the  above  form  since 
its  enactment  as  §  4  of  the  act  of  1853. 

1.  A  building  is  not  erected  by  the  owner  of  the  land  when  he 
allows  his  son  to  contract,  in  the  latter's  name,  for  its  erection, 
and  to  superintend  its  construction,  upon  the  former's  land;  even 
although  the  father  also  furnishes  the  money  for  the  work.  Bah- 
hit  V.  Condon,  3  Dutch.  154;  but  a  building  is  erected  by  the 
owner  when  he  orally  employs  another  to  build  it,  American  Brich 
Co.  V.  Drinhhouse,  30  Vroom  462;  or  where  he  contracts  in  his 
own  name,  in  writing,  for  its  erection,  Young  v.  Wilson,  15  Vroom 
161;  Erdman  v.  Moore,  29  Vroom  445;  though  such  contract  be 
not  filed.  Brewing  Company  v.  Donnelly,  30  Vroom  48;  or  where 
the  contract  is  made  by  the  owner's  agent  in  the  latter's  name  only. 


78  Mechanics  Lien  Law. 

Earle  v.  Willetts,  27  Vroom  334,  and  see  §  2  supra,  note  1,  own- 
er's signature  to  contract. 

2.  THE  TENANT'S  SUKRENDER  of  his  term,  and  abandon- 
ment of  the  building,  erected  on  the  land,  to  the  landlord,  cannot 
defeat  the  lien  of  one  who  has  given  work  or  materials  to  the  con- 
struction of  the  building.  Hagan  v.  Gashill,  15  Stew.  215.  The 
building  in  this  case  was  a  pier,  and  the  lessee's  estate  was  a 
ten  year  terai  in  the  shore  front. 

If  a  claimant  seeks  to  enforce  a  lien  against  the  estate  of  the 
tenant,  he  must,  in  his  lien  claim  and  suit,  describe  him,  and 
not  the  lessor,  as  the  owner.     Corcoran  v.  Jones,  12  N.  J.  L.  J.  38. 

A  LICENSEE  (the  license  being  revocable)  has  no  interest  or 
estate  in  the  land  which  can  be  subjected  to  a  mechanic's  lien. 
Wm.  H.  Atkimon  Co.  v.  Shields  Co.,  72  Atl,  81.  See  post,  under 
§  24,  Form  of  Judgrnent. 

A  litigation  under  this  clause  may  require  the  separate  valua- 
tion of  the  land  and  fitxures  thereon.  Central  R.  R.  C.  v.  State 
Board,  67  Atl.  672,  at  p.  685. 

3.  THE  CONSENT  REQUIRED  by  the  statute  must  be  such 
as  clearly  shows  that  the  owner  intended  to  subject  his  lands  to 
a  possible  lien  for  the  contemplated  work.  Associates  v.  Davison,  5 
Dutch.  415;  Hervey  v.  Gay,  13  Vroom  168,  reversing  s.  c,  12 
Vroom  39;  and  approving  s.  c,  1  N.  J.  L.  J.  51;  Macl-mtosh  v. 
Thurston,  10  C.  E.  Gr.  242;  and  so  a  lease  w^liich  authorizes  the 
tenant  to  make  repairs  or  alterations  at  his  owii  expense,  or  a 
similar  permission  in  writing,  not  incorporated  in  the  lease,  is 
not  the  statutory  consent.  Hervey  v.  Gay,  supra;  Dey.  v.  Davis, 
18  N.  J.  L.  J.  301. 

It  was  held  by  Vice  Chancellor  Bird,  in  Leon-ard  v.  Cook,  20  Atl. 
855,  that  the  lien  claims  of  mechanics  and  others  for  erecting  a 
building  for  a  vendee  in  possession  before  any  deed  was  delivered, 
but  with  the  vendor's  knowledge,  is  superior  to  the  claim  of  the 
vendor,  who  afterwards  delivered  the  deed,  for  the  unpaid  price 
of  the  land. 

A  CONTRACT  TO  CONVEY  lands  does  not  amount  to  the 
statutory  consent,  to  the  erection  of  buildings  for  the  vendee. 
National  Bank,  etc.,  v.  Sprague,  5  C.  E.  Gr.  13;  Gihls  v.  Grant, 
2  Stew.  420;  even  although  the  vendor  agrees  to  loan  the  vendee 
the  money  therefor.  Associates,  etc.,  v.  Davison,  supra;  Mackin- 
tosh V.  Thurston,  supra;  nor  does  the  vendor's  statement,  to  the 
persons  who  are  erecting  the  building  for  the  vendee — that  they 
will  be  perfectly  safe  in  going  on  with  the  work — amount  to  such 
consent.     Strong  v.  Van  Deursen,  8  C.  E.  Gr.  369. 

A  LEASE  AND  CONTRACT  to  convey  are  not  the  necessary 
consent.     Currier  v.  Cummings,  13  Stew.  145. 

A  FICTITIOUS  CONTRACT,  which,  on  that  account,  by  be- 
ing filed,  does  not  protect  the  land  from  lien,  is  good  as  a  con- 
sent on  the  part  of  the  owner  who  signed  it.     Young  v.  Wilmn, 

supra.  .     , 

PERSONS  NON  COMPOS.    The  land  of  a  person,  in  law  (or 


Revision  of  1898,  §  8.  79 

in  fact?),  incapable  of  giving  a  consent  cannot  be  liable  to  a  lien 
for  a  building  erected  uix)n  it;  as,  for  example,  in  the  case  of  a 
minor,  Hall  v.  Acken,  18  Vroom  340.  As  to  married  women  see, 
Washburn  v.  Burns,  5  Vroom  18;    and  post,  section  13. 

4.  The  consent  does  not  have  to  be  acknowledged  or  recorded; 
the  statute  does  not  mean,  must  or  shall  be  acknowledged,  etc.  Gay 
V.  Smith,  1  N.  J.  L.  J.  51;  s.  c.  approved,  12  Vroom  39.  See 
also.  Young  v.  Wilson,  supra;  Erdman  v.  Moore,  29  Vroom  445. 

The  word,  building,  defined  (to  include,  an  addition  to  a 
former  building,  any  fixed  machinery  or  gearing,  or  fixtures 
for  manufacturing  purposes).  Fixtures  for  manufacturing 
purposes,  defined. 

8.  Any  addition^  erected  to  a  former  building-,  and  any 
fixed  machinery  or  g-earing,  or  other  fixtures  for  manufactur- 
ing purjjoses,^  shall  be  considered  a  building  for  the  purposes 
of  this  act.  The  words,  ''fixtures  for  manufacturing  purpo- 
ses," as  used  in  this  section,  shall  be  construed  to  include  any 
building  erection,  or  construction  of  whatever  description, 
attached  or  annexed,  or  intended  to  be  attached  or  annexed,  to 
any  land  or  tenement,  and  designed  to  be  used  in  the  building 
or  repairing  of  vessels,  whether  the  same  be  permanently 
attached  to  the  freehold,  or  so  built  as  to  be  removed  from 
place  to  place,  and  only  temporarily  attached  to  the  land  and 
whether  the  same  he  intended  and  designed  for  use  on  land 
or  water.'*^ 

1898,  p.  538,  §  8;    1853,  p.  437,  §  5;    1860,  p.  689; 
Rev.  187Jf,  §§  5,  6. 

The  act  of  1853,  §  5,  read— 

"Any  addition  erected  to  a  foi-mer  building,  and  any  fixed  ma- 
chinery, or  gearing,  or  other  fixtures  for  manufacturing  purposes 
shall  be  considered  a  building  for  the  purposes  of  this  act;  but 
no  building  shall  be  subject  to  the  provisions  of  this  act,  for  any 
debt  contracted  for  (repairs  done  thereto  or)  alterations  made 
therein."  The  Revision  of  1874,  §  5,  omitted  the  words  which 
we  have  enclosed  in  parenthesis,  but  left  the  section  otherwise  un- 
changed. 

The  Revision  of  1898,  it  will  b©  noticed,  omits  the  entire  con- 
eluding  clause,  and  then  joins  into  the  same  section  the  definition 
of  the  words,  fixtures  for  manufacturing  purposes,  which  was  first 
enacted  in  the  act  of  1860,  p.  689,  and  stood  as  §  6  in  the 
Revision  of  1874. 

1.  AN  ADDITION  TO  A  BUILDING,  means  a  lateral  addi- 
tion, one  which  occupies  land  without  the  limits  of  the  original 


80  Mechanics  Lien  Law. 

building;  but  adding  to  its  height,  or  depth,  or  changing  its  in- 
terior structure,  is  an  alteration,  not  an  addition.  Peirine  v. 
Pa/rJcer,  5  Vrooni  352;  Updike  v.  Shillman,  3  Dutch.  131;  and  so, 
a  piazza  is  an  addition,  WhitenacJc  v.  Noe,  3  Stock.  321,  413;  but 
a  bay  window  is  not  (?),  nor  a  new  roof,  Perrine  v.  Parker^  supra; 
nor  another  story,  Updike  v.  Skillman,  supra. 

2.  A  BRICK  MAKING  MACHINE,  when  permanently  added 
to  the  freehold,  is  a  fixtui'e  for  manufacturing  purposes,  Ameri- 
can Bnck  Co.  V.  Drinkhouse,  30  Vroom  462;  so  is  a  WOODEN 
FLUME,  to  lead  wat^r  from  the  dam  to  the  mill  wheel  inside  the 
mill,  Edwards  v.  Derrickson,  4  Dutch.  39;  s.  c,  5  Dutch,  468;  so 
are  the  POLES,  WIRES,  INSULATORS,  etc.,  of  an  electric 
power  company,  erected  for  transferring  power.  Hughes  v.  Lam- 
hertville,  etc.,  Co.,  8  Dick.  435. 

MANUFACTURING  PURPOSES.  The  production  of  elec- 
tricity for  use  on  a  trolley  road  is  a  manufacturing  purpose,  within 
this  clause:  and  ENGINES,  DYNAMOS,  and  other  connected  ap- 
pliances for  the  production  and  control  of  electric  power,  set  up 
in  a  power  house  for  such  use  are  fixtures  under  this  section,  if 
they  are  not  indeed  part  of  the  realty  anyway.  Bates  Co.  v.  Tren- 
ton Co.,  41  Vroom  684. 

ENGINES,  PUMPS,  BLOWERS,  STEAM  BOILERS, 
GEARING,  BELTING,  EMERY  WHEELS,  MELTING  FUR- 
NACES, GRINDING  MILL,  and  SMOKE  STACKS,  placed  for 
use  in  the  building  of  a  steel  casting  company,  are  fixtures.  Cur- 
rier V.  Cummings,  13  Stew.  145. 

A  BORING  MILL,  A  BORING  AND  TURNING  MILL,  AN 
ENGINE  LATHE,  A  FEED  DRILL,  A  KEY  SETTER,  AND 
A  COUNTER  SHAFT,  delivered  to  a  water  wheel  manufactur- 
ing company,  to  be  placed  in  its  factory,  are  fixtures  for  manu- 
facturing purposes,  as  soon  as  so  delivered.  Campbell  v.  Taylor, 
etc.,  Co..  51  Atl.  R.  723,  reversing  s.  c,  49  Atl.  R.  1119. 

COPPER  ROLLS,  for  print  cloth  machines,  are  not  fixtures 
for  manufacturing  purposes.     Griggs  v.  Stone,  22  Vroom  549. 

MOVABLE  MACHINES,  not  indispensable  to  the  enjoyment 
of  the  freehold,  nor  intended  to  be  permanently  annexed  to,  and 
made  part  of  the  realty,  are  not  fixtures.  Rogers  v.  Brokaw,  infra ; 
Case  V.  Arnett,  11  C.  E.  Gr.  459;  s.  c,  2  Stew.  309. 

THE  TRUE  CRITERION  OF  A  FIXTURE  is,  the  united 
application  of  the  following  requisites:  1.  Actual  annexation  to 
the  really,  or  something  appurtenant  thereto.  2.  Adaptation  to 
the  use  to  which  that  part  of  the  realty,  to  which  it  is  connected, 
is  appropriated.  3.  The  intention,  of  the  party  making  the  an- 
nexation, to  make  thereby  a  permanent  accession  to  the  free- 
hold. Of  these  three  tests  pre-eminence  is  given  to  the  question 
of  intention.  Erdman  v.  Moore,  29  Vroom  445;  Brearley  v.  Cox, 
4  Zab.  289;  Quinty  v.  Manhattan,  etc.,  Co.,  9  0.  E.  Gr.  261; 
Rogers  v.  Brokaw,  10  C.  E.  Gr.  496.  But  under  this  section,  the 
determination  is  one  of  statutory  construction  rather  than  of  the 
law  of  fixtures  and  the  test  is  whether  the  tools  were  not  mere 
movable  tools,  but  were  intended  to  be  used  as  a  permanent  part 


Revision  of  1898,  §  10.  81 

if  the  plaut.       Camphell  v.  Taylor  Co..  19  Dick.  344;  rev.  s.  c, 
17  Dick.  307. 

DOUBTFUL  CASES.  Whenever  machinery  is  of  such  a 
character  as  to  be  susceptible  of  the  common  law  lien  (manual 
transmission),  doubts,  as  to  whether  it  is  also  subject  to  statutory 
lien,  should  be  resolved  in  the  negative.  Griggs  v.  Stone,  22 
Vroom  549. 

3.  Until  this  enactment,  a  floating  dock  could  not  be  con- 
sidered to  be  a  fixture  for  manufacturing  purposes.  Coddington 
V.  Beehe,  2  Vroom  477. 

Mills  and  factories  and  their  curtilages  liable  to  lien  for 
repairs  to  fixed  machinery,  etc. 

9.  The  lien  given  bv  this  act  is  hereby  extended  to  all 
mills  and  manufactories,  of  whatever  description,  within 
this  state,  and  to  the  lots  of  land  or  curtilages  whereon  the 
same  are  erected,  for  all  debts  contracted  by  the  o"^^^ler  or 
owners  thereof,  or  by  any  other  person  with  the  consent 
of  such  owner  or  owners,  in  writing,  for  work  done  or  ma- 
terials furnished  for  or  about  the  repairing  of  any  fixed  ma- 
chinery, or  gearing,  or  other  fixtures  for  manufacturing  pur- 
poses, on  the  same. 

189S,  p.  538,  §  9;    1855,  p.  211;   Rev.  187 J^,  §  7. 

This  section  remains  unchanged  as  first  enacted  in  1855  and 
taken  into  the  Eevision  of  1874  as  §  7. 
AS  TO  FIXED  MACHINERY,  etc.,  see  supra,  §  8,  and  notes 
FKTOEITY  OF  BONA  FIDE  PURCHASERS  AND  MORT- 
GAGEES. Quaere.  Do  the  provisos  in  §  10  apply  also  to  claims 
under  this  section.  By  the  definition  of  §  8,  it  would  seem  that 
all  the  claims  provided  for  in  this  section  (9)  are  also  provided 
for  in  §  10.  See  American  Brick  Co.  v.  DrinJchouse,  30  Vroom 
462,  in  which  it  was  expressly  held,  that  the  alteration  of  fixed 
machinery  was  the  alteration  of  a  building,  within  the  meaning 
of  the  act  of  1883.  p.  24;   and  see  also,  note  to  §  10  below. 

Building  and  curtilage  liable  to  lien  for  repairs  or  altera- 
tions.   Prior  encumbrancers  and  purchasers. 

10.  The  lien  given  by  this  act  shall  be  and  is  hereby 
extended  to  all  buildings  of  whatever  description  (erected  or 
to  be  erected)  in  this  state  and  the  lots  or  curtilages  whereon 
the  same  are  erected,  for  all  debts  contracted  by  the  owners 
thereof,  or  by  any  other  person  with  the  consent  of  the 
owner  or  owners  in  writing,^  for  work  done  or  materials  fur- 

6 


82  Mechanics  Lien  Law. 

nished  in  and  for  the  repairing  (or  alteration)  of  any  such 
building;^  ^p'ovided,  hoivever,  that  said  lien  shall  not  be  val- 
id against  a  bona  fide  purchaser  or  mortgagee  before  said  lien 
is  filed  in  the  office  of  the  clerk  of  the  county  (in  which  said 
lot  or  curtilage  is  situate  f  and  provided  further,  that  work 
done  or  materials  fwmished  under  contract  in  and  for  such 
repairs  or  alterations  shall  he  liable  to  the  said  conti'actor 
alone  in  the  manner  p7vmded  hy  the  second  section  of  this 
act). 

1898,  p.  5S8,  §  10;  1859,  p.  W;  Bev.  1874,  §  8;  1883, 

The  act  of  1859,  p.  451,  was  substantially  the  same  as  the  above 
section,  omitting  the  words  in  parentheses.  It  also  had,  at  the 
place  indicated  by  the  asterisk,  the  words — "provided  the  agree- 
ment be  made  a  matter  of  record  in  the  office  of  the  clerk  of  the 
county."  The  Eevision  of  1874.  in  §  8,  embodied  this  act  of  1859, 
substantially  word  for  word,  except  that  it  omitted  the  proviso 
just  above  quoted. 

The  act  of  1883,  p.  24,  enacted,  "that  the  lien  given  by  the  act 
to  which  this  is  a  supplement,  shall  be  and  is  hereby  extended  to 
all  buildings,  of  whatever  description,  Avithin  this  State,  and 
to  the  lot  or  curtilage  whereon  the  same  are  erected,  for  all  debts 
contracted  or  owing  to  any  person  for  work  done  or  materials  fur- 
nisiied  in  and  for  the  alteration  of  any  such  building;  provided, 
that  work  done  or  materials  furnished  under  contract  in  and  for 
such  alterations  shall  bo  liable  to  the  contractor  alone,  in  the  man- 
ner provided  by  the  second  section  of  said  act." 

It  will  be  noticed  that  this  act  gave  the  lien  although  the  owner 
of  the  land  had  not  contracted  the  debt  and  had  not  consented 
in  writing  that  the  work  be  done.  American  Brick  Co.  v.  Drink- 
house.  30  Vroom  462.  The  present  act  repealed  the  act  of  1883, 
and,  in  the  above  section,  requires  that  the  debt  must  be  the  debt 
of  the  owner  or  else  that  the  work  be  with  his  written  consent. 
Murphy  V.  Hussa,  40  Vroom  381. 

In  both  the  act  of  1883  and  the  present  section,  it  will  be  noted, 
that  the  proviso  does  not  say  what  it  means,  viz.;  that  for  work 
done  or  materials  furnished  under  contract  (in  and)  for  such 
repairs  or  alterations,  such  huilding  and  the  land  whereon  it 
stands  shall  be  liable,  etc. 

1.  A  lease  which  provides  that  the  tenant  may  make  repairs, 
at  his  own  expense,  is  not  a  sufficient  consent.  Hervey  v.  Gay, 
13  Vroom  168.    See,  generally,  §  7,  notes  1,  3  and  4. 

2.  THE  ALTEEATION  of  an  old  building  is  not  the  erection 
and  construction  of  a  building,  even  although  the  alteration  very 
materially  changes  the  building  in  dimensions,  general  appear- 
ance, and  structure,  so  that,  in  a  fair  sense,  it  might  be  said  to  be 


Eevision  of  1898,  §  10.  83 

a  new  structure.  Comhs  v.  Lippincott,  6  Vroom  481;  Updike  v. 
Skillman,  3  Dutch.  131. 

A  CESSPOOL,  connected  with  the  bath  room,  is  part  of  an 
alteration  of  the  bath  room.    Burd  v.  Huff,  17  N.  J.  L.  J.  80. 

Where  the  evidence  clearly  shows  the  character  of  the  change 
in  a  building,  it  is  for  the  court,  not  the  jury,  to  say,  whether  it 
is  an  alteration  or  an  addition,  Updike  v.  Skillman,  3  Dutch.  131. 

That  the  ALTERATION  OF  FIXED  MACHINERY  is  the 
alteration  of  a  building  see,  American  Brick  Co.  v.  Drinkhouse, 
30  Vroom  462. 

3.  PRIORITY  OF  BONA  FIDE  PURCHASERS  AND 
MORTGAGEES.  Originally,  by  the  provisions  of  §  11  of  the 
act  of  1853,  lien  claimants  were  given  priority  over  encumbrances 
which  did  not  exist  at  the  time  the  building  was  begun. 

In  extending  the  lien  to  the  case  of  repairs  of  fixed  machinery, 
etc.,  by  the  act  of  1855  (see  now  §  9  supra),  the  legislature  made 
no  change  in  this  previously  established  order  of  priority;  but 
when,  by  the  act  of  1859  (now  incorporated  in  the  present  sec- 
tion), it  extended  the  lien  to  the  case  of  repairs  of  all  buildings; 
it  took  care,  by  its  proviso,  to  subject  the  rights  of  such  claim- 
ants to  the  rights,  of  bona  fide  purchasers  or  mortgagees,  inter- 
vening before  a  lien  claim  was  filed,  and  so  differentiated  such 
claims  from  all  others. 

In  all  subsequent  legislation,  to  th  time  of  the  present  revision, 
this  limitation  remained  applicable  only  to  claims  for  repairs, 
as  will  be  seen  by  reference  to  §  11  (act  of  1871,  p.  66),  §  12 
(act  of  1893,  p.  385,  §§  1  and  2),  §§  8  and  9,  and  the  text  of  the 
act  of  1883,  p.  24,  above  quoted ;  except  so  far  as  the  provisions 
of  the  act  of  1895,  p.  313,  §  6  (§  15,  post)  may  have  affected 
them.  But  now,  by  eliminating  the  act  of  1883,  p.  24,  and  in- 
serting the  word,  "alterations,"  in  this  section,  the  legislature 
has  also  subjected  claims  for  alterations  to  this  same  disability. 

The  statute  does  not  make  it  clear  that  the  deed,  or  mortgage, 
of  the  bona  fide  purchaser,  or  mortgagee,  must  be  recorded  before 
the  lien  claim  is  filed,  in  order  that  the  lien,  for  alteration  or  re- 
paration, shall  be  invalid  as  against  them ;  and  it  would  seem  to 
be  clear,  that  the  right  of  a  bona  fide  purchaser,  at  a  sheriff's 
sale  on  a  judgment  antedating  the  commencement  of  the  im- 
provement, but  whose  deed,  by  no  laches,  was  not  recorded  until 
after  a  lien  was  filed,  would  be  determined  by  the  date  of  the 
judgment  and  not  of  the  record  of  the  deed.  But,  presumably, 
there  must  be  a  record  of  the  deed,  or  of  that  from  which  the  deed 
derives  its  efiicacy,  prior  to  the  filing  of  the  lieu  claim,  in  order 
1o  postpone  the  latter  to  the  former. 

PRIORITY  AS  TO  OTHER  ENCUMBRANCERS.  It  will 
have  been  noticed,  that  the  present  section  says  nothing,  as  to 
the  relative  priority  of  a  lien  claim  for  alteration  or  reparation, 
and  the  encumbrances  of  others  than  bona  fide  purchasers  and 
mortgagees;  and  the  provisions  of  the  act  of  1895,  p.  313.  §  6. 
(§  15  post),  above  adverted  to,  also  qualify  the  effect  of  this 
section,  in  respect  of  a  certain  class  of  mortgagees.     An  analysis 


84  Mechanics  Lien  Law. 

of  all  these  different  provisions,  in  respect  of  the  question  of  prior- 
ities, is  hereafter  attempted,  and  reference  is  here  made  thereto. 
(See  §  28  post,  note  2.) 

As  to  WHO  IS  A  BONA  FIDE  MOETGAGEE,  it  has  been 
decided  that  he  is  such  who  has  taken  his  mortgage  before  he  has 
actual  notice  that  the  work  of  reparation  or  alteration  has  begun, 
Burd  V.  Huff,  17  N.  J.  L.  J.  80;  Reed  v.  Rochford,  50  Atl.  R.  70; 
and  that  a  mortg'age  is  bona  fide,  even  if  given  to  secure  a  debt 
which  had  arisen  previous  to  the  execution  of  the  mortgage, 
because  the  statute  does  not  say  that  the  mortgage  must  be  for 
value,  as  well  as  bona  fide.    Reed  v.  Rochford,  supra. 

Docks,  etc.,  and  lands  fronting  same  liable  to  lien  for  the 
construction  of  same. 

V         11.   The  lien  given  bj  this  act  is  hereby  extended  to  all 
docks,  wharves  and  piers  erected  upon  any  navigable  river 
in  this  state,  and  to  the  lots  of  land  in  front  of  which  such 
Q         docks,   wharves  or  piers  may  be  erected,  and  all  the  inter- 
"  est  of  the  owner  or  owners  of  such  land  in  the  soil  or  waters 

of  such  navigable  river  in  front  of  said  lands,  for  all  debts 
contracted  by  the  owner  or  owners  thereof,  or  by  any  other 
person  with  the  consent  of  such  owner  or  o^vners,  in  writing, 
for  work  done  or  materials  furnished  for  or  about  the  erec- 
tion or  filling-in  of  said  docks,  wharves  or  piers. ^ 

1898,  p.  538,  %  11;    1871,  p.  66;   Rev.  187 Jt,  §  10. 

This  section  is  substantially  the  same  as  when  it  was  first  en- 
acted in  1871,  and  afterwards  embodied  in  the  Revision  of  1874 
as  §  10. 

1.  See  above,  under  §  7,  note  2,  Hagan  v.  Gashill,  15  Stew,  215. 

Building  and  curtilage  liable  to  lien  for  the  removal  of 
same.  Removal  of  building  defined  (to  include  the  erect- 
ion, conBtruction  and  repair  of  foundation  or  superstruct- 
ure to  which  the  removal  is  made). 

12.  Every  building  or  part  or  parts  of  any  building  which 
shall  hereafter  be  removed  and  shall  be  located  upon  some 
other  lot  or  curtilage,  and  which  shall,  when  removed,  con- 
stitute a  complete  structure  or  a  part  of  a  structure  upon 
the  curtilage  to  which  the  same  shall  be  removed,  shall  be 
liable  for  the  payment  of  any  debt  contracted  and  owing  to 
any  jjerson  for  labor  performed  or  materials  furnished  in 
the  removal  of  the  same,  which  debt  shall  l>e  a  lien  on  such 


Revision  of  1898,  §  13.  85 

building  so  removed  and  the  building  to  which  the  same  shall 
be  attached  or  incorporated  and  on  the  land  whereon  the 
building  shall  be  removed,  including  the  lot  or  curtilage 
whereon  tlie  same  is  located  bj  such  removal ;  all  of  the  labor 
performed  and  materials  furnished  in  erecting,  constructing 
and  repairing  the  foundation  or  superstructure,  upon  which 
such  removed  building  shall  be  located  upon  or  incorporated 
with  some  other  building,  shall  be  deemed  and  taken  to  be 
labor  performed  and  materials  furnished  in  the  removal 
of  the  biulding. 

1898,  p.  538,  §  12;   1893,  p.  385,  §§  1-2. 

This  section  embodies,  without  change,  §§1  and  2  of  the  act 
of  1893,  which  was  the  first  provision  on  the  subject. 

Land  of  married  woman  liable  to  lien  for  building  erected 
thereon  w^ith  her  knowledge,  unless  she  flies  a  written 
notice  to  the  contrary. 

13.  Any  married  woman,  upon  whose  lands  any  building 
or   buildings    shall    hereafter    be    erected    or    repaired,    or 
whereon  any  fixtures  shall  be  put,  shall  be  taken  as  consent- 
ing to  the  same,  and  such  building  or  buildings  and  cur- 
tilages whereon  the  same  are  erected  shall  be  subject  to  the 
lien  created  by  this  act;  provided  always,  that  in  case  said 
married  woman  shall  cause  to  be  filed  in  the  clerk's  office  of 
the  county  wherein  such  building  or  buildings  are  located  a 
notice  in  ^vl•iting,  describing  tJie  property,  and  that  she  does 
not  consent  to  the  erection  or  repairng  of  such  building  or 
buildings  on  her  lands,   and  that  the  same  is  being  done 
against  her  wishes  and  consent,  then,  in  such  case,  the  build- 
ing or  buildings,  and  the  curtilages  whereon  the  same  are 
erected,  of  any  married  woman,  shall  be  free  from  the  lien 
given  by  this  act  from  the  time  she  shall  have  filed  a  notice  as 
aforesaid;    {and  promded  further,  that  nothing  in  this  act 
contamed  shall  h&  so  con^strued  as  to  mahe~  the  lands  of  any 
person  liable  for  amy  building  or  repairs  noi  authorized  hy 
the  owner,  or  built  or  done  withoid  the  knowledge  of  the 
owner), 

1898.  p.  538,  §  13;    1870,  p.  63;  Rev.  187 Jf,  §  9,  §  28; 
1876,  p.  66.    See  also  1866,  p.  1015,  §  1. 


8(5  Mechanics  Lieist  Law. 

The  words  in  parenthesis  were  added  by  the  act  of  1876;  ia 
all  other  respects  the  section  reads  the  same  as  when  first  enacted 
in  1870,  and  as  subsequently  embodied  in  §  9  of  the  Revision  of 
1874. 

THE  QUESTION  OF  THE  CONSTITUTIONALITY  of  this 
section  does  not  seem  to  have  been  raised  in  any  case  in  this 
State  as  yet;  it  has,  however,  been  decided  in  other  jurisdictions 
that  such  a  provision,  inasmuch  as  it  requires  knowledge  or  con- 
sent on  the  part  of  the  owner,  does  not  deprive  such  owner  of 
his  property  without  due  process  of  law.  Wheaton  v.  Berg,  50 
Minn.  525;  Congdon  v.  Cook,  55  Min.  1;  Title  Co.  v.  Wrenn,  35 
Ore^^  62 ;   76  Am.  St.  Rep.  454. 

But  a  statute  which  imposes  a  lien,  for  a  building  erected  on 
a  person's  lands,  without  requiring  any  proof  that  it  was  so  built 
with  either  his  consent  or  knowledge,  and  merely  upon  such  own- 
er's failure  to  disavow  any  responsibility  therefor.  Is  a  violation 
of  the  constitutional  provisions  referred  to;  even  although  the 
statute  purport  merely  to  provide  a  rule  of  evidence  by  which 
such  owner's  consent  might  be  taken  as  inferrible  from  the  fact 
that  the  building  was  erected  on  his  land,  without  objection  on 
his  part.  Randolph  v.  Builders,  etc.,  Co.,  106  Ala.  501;;  Meyer 
V.  Berlandi,  39  Minn.  438;  12  Am.  St.  Rep.  663;  20  Am.  & 
Eng.  Ency.  (2d  ed.)  316;  Wig.  on  Ev..  §  1354.  See  also  Berger, 
etc.,  Co.  V.  Zabriskie,  75  N.  Y.  Supp.  (City  Ct.)  1038. 

PREVIOUS  STATE  OF  THE  LAW.  INABILITY  TO 
CONSENT.  Prior  to  the  enactment  of  the  act  of  1870,  above 
referred  to,  and  before  the  statutes  in  relation  to  married  women, 
there  could  be  no  lien  against  the  lands  of  a  married  woman, 
for  the  erection  of  a  building  thereupon,  with  her  acquiescence, 
because  she  was  incapable  of  legally  consenting.  Johnson  v. 
Parker,  3  Dutch.  239. 

ESTATE  BY  ENTIRETY.  After  the  married  women's  acts, 
but  before  this  act  of  1870;  even  if  a  married  woman  was  enabled, 
by  the  former,  to  assent  to  a  building  on  ber  lands,  so  as  to  make 
them  liable  to  a  lien ;  her  consent  must  have  been  shown  to  have 
been,  in  fact,  given;  and  the  husband's  sole  contract,  for  the 
erection  of  a  building  on  landfe,  of  which  they  were  seized  by 
entirety,  rendered  his  separate  estate  only  liable  to  lien  therefor. 
Washhiirtv  v.  Burns,  5  Vroom  18. 

EFFECT  OF  PRESENT  ENACTMENT.  ESTATE  BY 
ENTIRETY.  Whether  the  determination  in  Washhurn  v.  Burns, 
will  hold  good  since  the  act  of  1870,  may  be  questioned.  It 
might  be  held,  now,  that  the  joint  estate  would  be  liable. 

As  to  the  MARRIED  WOMAN'S  KNOWLEDGE  of  the  build- 
ing, see  Kittredge  v.  Neumann.  11  C.  E.  Gr.  195.  See  also  Dodge 
€t  al.  V.  Romain,  18  Atl.  114  (E.  &  A.)  in  which  it  was  held  that 
when  a  building  is  erected  on  a  married  woman's  land  under  a 
contract  to  which  she  is  not  a  party,  her  knowledge  that  it  was 
being  erected  is  not  to  be  inferred  from  the  fact  that  she  subse- 
quently joined  with  her  husband  in  conveying  the  land  to  the 
person  who   procured  the  building  to  be  erected,   and  to  whom 


Rk VISION  OF  1898,  §  14.  87 

her  husband  had  agreed,  without  her  knowledge  or  authority,  to 
convey  the  same,  that  subsequent  ratification  of  his  contract  to 
sell  being  insufficient  to  impute  to  her  his  previous  knowledge. 

As  the  married  woman's  land  is  liable  to  lien  in  the  case  con- 
templated by  the  statute,  it  is  just  that  she  should  have  the  bene- 
fit of  the  provisions  of  §  2,  if  the  contract  has  been  filed  as  has 
been  accordingly  held.  It  has  also  been  held  that  she  may  be 
served  with  a  stop  notice,  in  such  case,  and  is  the  proper  person 
to  be  served.     See  Gardner  &  Meeks  Co.  v.  Herold,  72  Atl.  24. 

See  also,  generally,  §  2  above,  note  1,  Owner's  signature  to 
contract. 

Recorded  or  registered  purchase  money  mortgages,  which 
are  also  advance  money  mortgages,  postponed  to  lien 
claims,  to  the  extent  of  the  moneys  remaining  unadvanced. 

14.  Whereas  it  is  the  practice  of  owners  of  lots  or  tracts 
of  land  to  dispose  of  the  same  to  a  builder  or  builders,  tak- 
ing therefor  a  mortgage  or  mortgages  in  excess  of  the  pur- 
chase money  price  of  said  lot  or  tract  of  land,  the  mort- 
gagee agreeing  to  pay  such  excess  to  the  aforesaid  builders, 
from  time  to  time,  as  the  building  or  buildings  progress, 
such  mortgages  being  known  as  advance  money  mortgages; 
therefore,  in  all  such  transactions  the  building  or  build- 
ings so  erected  shall  be  liable  for  the  payment  of  any  debt 
contracted  and  owing  to  any  person  or  })ersons  for  labor 
performed  or  materials  furnished  for  the  erection  and  con- 
struction thereof,  which  debt  shall  be  a  lien  on  such  build- 
ing or  building's  and  on  the  land  whereon  they  stand,  includ- 
ing the  lot  or  curtilage  whereon  the  same  are  erected,  and 
the  lien  for  labor  performed  or  materials  furnished  for  the 
erection  and  construction  of  any  such  building  or  build- 
ings, shall  be  a  prior  lien  to  the  lien  of  any  mortgage  cre- 
ated on  such  building  or  buildings  and  lot  or  tract  of  ground 
to  secure  either  in  whole  or  in  part  any  advances  in  money 
to  be  used  in  and  about  the  construction  of  such  building  or 
buildings,  {hut  to'  the  extent  only  of  the  moneifs  remaining 
to  he  advanced  by  the  mortgagee  under  such  agreement; 
provided,  such  mortgage  shall  be  recorded  or  registered 
before  the  filing  of  any  claim  in.  pursuance  of  this  act). 

1898,  p.  538,  §  U;   1879,  p.  77.  %  1. 

The  words  in  parentheses  were  added  by  the  revision  of  189S, 
in  lieu  of  the  following  words  of  the  section,  as  originally  enacted 
in  1879 — "except  only  so  much  of  the  amount  of  said  mortgage 


8S  Mechanics  Lien  Law. 

as  shall  be  for  the  purchase  money  of  the  lot  or  tract  or  land 
whereon  the  said  building  or  buildings  shall  be  erected;  provided 
that  nothing  in  this  act  shall  interfere  with  a  mortgage  or  mort- 
gages to  secure  bona  fide  loans  of  money  not  advanced  as  afore- 
said, such  bona  fide  loans  to  be  paid  in  full,  anything  in  this 
act  to  the  contrary   notwithstanding. 

1.  ADVANCE  MONEY  MORTGAGES.  It  is  well  settled 
that  a  mortgage  given  to  secure  future  advances,  if  duly  regis- 
tered or  recorded,  is  good  not  only  as  against  the  mortgagor,  but 
is  entitled  to  priority  over  all  encumbrancers  whose  liens  attach 
subsequently  to  its  creation,  for  all  advances  made  prior  to  no- 
tice of  such  subsequent  encumbrances,  and  also  for  all  advances 
mad©  prior  to  notice  of  such  subsequent  encumbrances,  and  also 
for  all  advances  made  after  such  notice  when  the  mortgagee  pre- 
vious to  such  notice  had  obligated  himself  to  make  them.  Grif- 
fin V.  New  Jersey,  etc.,  Co.,  3  Stock.  49;  Trenton,  etc.,  Co.  v. 
Woodruff,  1  Green  Ch.  118;  Bell  v.  Fleming's  Exrs.,  1  Beas.  13; 
s.  c,  1  Beas.  490;  Rohinson  v.  Urquhart.  1  Beas.  515;  Ward  v. 
Cooke,  2  C.  E.  Gr.  93;  Kline  v.  McGuchin,  9  C.  E.  Gr.  411; 
Taylor  v.  LaBar,  10  C.  E.  Gr.  222;  Plait  v.  Griffith,  12  C.  E.  Gr. 
207;  Jacobus  v.  Mut..  etc.,  Co.,  12  C.  E.  Gr.  604;  reversing  s.  c, 
11  C.  E.  Gr.  389;  Lanahan  v.  Laivton,  5  Dick.  276;  Central  Trust 
Co.  V.  Continental,  etc.,  Co.,  6  Dick.  605;  Reed  v.  Rochford,  50 
Atl.  R.  70;   Heintze  v.  Bentley,  7  Stew.  562. 

The  notice  must  be  actual,  not  merely  constnictive,  Ward  v. 
Cooke,  supra;  Kline  v.  McGuckin,  supra;  Heintze  v.  Bentley, 
supra;  Central  Trust  Co.  v.  Continental,  etc..  Co.,  supra;  Reed 
V.  Rochford,  supra;  and  the  obligation  to  make  such  advances, 
after  actual  notice  of  subsequently  attaching  liens,  may  be  oral 
as  well  as  in  writing.     Piatt  v.  Griffith,  supra;  Reed  v.  Rochford, 

supra.  .    ,   T 

The  rule  thus  established  is  as  applicable  to  mechanics  hen 
claims  as  to  any  other  kind  of  encumbrances.  Taylor  v.  LaBar, 
supra;  Piatt  v.  Griffith,  supra;  Jacohus  v.  Mutual,  etc.,  Co., 
supra;  Central  Trust  Co.  v.  Continental,  etc.,  Co.,  supra;  Reed 
V.  Rochford.  supra;  and  it  is  immaterial  whether  the  money  is 
advanced  for  the  building,  for  the  construction  of  which  mechan- 
ics' liens  are  claimed,  or  whether  it  is  advanced,  to  the  owner 
thereof,  for  anv  other  purpose.  Taylor  v.  LaBar.  supra;  Piatt 
V.  Griffith,  supra ;  Mackintosh  v.  Thurston,  10  C.  E.  Gr.  242.  See 
however.  Porch  v.  Agnew  Co.,  4  Rob.  328,  where  it  was  held  that 
the  holder  of  bonds,  purchased,  with  a  presently  passing  valua- 
ble consideration,  from  a  mortgagor,  though  secured  by  a  mort- 
gage recorded  before  the  commencement  of  the  building  and  given 
to  secure  advances,  is  not  entitled  to  priority  over  a  lien  claim 
when  they  were  purchased,  with  knowledge  that  there  were  build- 
ing liens  which  would  have  to  be  enforced  because  of  the  mort- 
gagor's insolvency,  and  were  not  purchased  in  the  open  market. 

Such  being  the  law  in  regard  to  these  mortgages  it  becomes 
next  pertinent  to  inquire  as  to  the  scope  and  effect  of  the  statute 
in  regard  to  them. 


Revision  of  1898,  §  14.  89 

SCOPE  OF  THE  STATUTE.  It  is  not  every  advance  money 
mortgage  that  the  section  relates  to ;  it  only  affects  advance  money 
mortgages  which  fall  within  the  stautory  terms  and  these  very 
plainly  require,  that  the  mortgage  shall  be  part  of  a  transaction 
between  the  mortgagor  and  the  mortgagee,  whereby  the  mort- 
gaged lands  are  conveyed  by  the  latter  to  the  former.  Hence,  the 
mortgagee  must  be  the  last  previous  owner  of  the  land  in  every 
case,  and  the  mortgage  may,  and  we  think  always  must,  be  a  pur- 
chase, as  well  as  an  advance,  money  mortgage. 

Furthermore,  the  terms  of  the  statute  include  only  such  mort- 
gages as  are  given  to  secure  advances  of  money  to  be  used  in  the 
construction  of  a  building  and  to  be  made  as  such  building  pro- 
gresses. It  seems,  therefore,  not  to  include  mortgages  to  secure 
advances  for  the  alteration  or  reparation  of  a  building,  or  for 
an  addition  thereto,  or  the  removal  thereof. 

EFFECT  OF  THE  STATUTE,  AS  TO  EXTENT  OF 
PRIORITY  OF  MORTGAGE.  As  originally  enacted,  the 
statute  postponed  every  mortgage  which  was  within  its  scope,  to 
all  lien  claims,  except  so  far  as  such  mortgage  secured  the  pur- 
chase price  of  the  land,  even  although  the  mortgagee  had  advanced 
the  rest  of  the  moneys  it  was  given  to  secure,  and  they  had  been 
actually  devoted  to  the  payment  of  materialmen  and  laborers  for 
the  construction  of  the  building.  Neio  Jersey,  etc.,  Co.  v.  Bach- 
elor, 9  Dick.  600;    Mutual,  etc.,  Co.  v.  Walling,  6  Dick.  99. 

Soon  after  the  decision  of  this  last  cited  case,  the  statute  of  1895, 
p.  313,  was  enacted,  the  sixth  section  of  which,  as  was  said  in 
Binns  v.  Slingerland,  10  Dick.  55,  modified  the  act  of  1879,  by 
providing  that  every  mortgage,  registered  or  recorded  before 
the  filing  of  a  lien'  claim,  should  have  priority  over  any  such 
claim  to  the  extent  of  the  moneys  actually  advanced  by  the  mort- 
gagee and  applied  to  the  erection  of  any  new  building,  or  any  al- 
terations, repairs,  or  additions  to  any  building  on  the  mort- 
gaged lands.  This  section  of  the  act  of  1895  is  retained,  without 
any  material  change,  as  section  15,  of  the  present  revision;  and 
the  revisers,  in  framing  the  present  draft  of  section  14,  now  under 
consideration,  omitted  the  words  which  stood  at  the  end  of  the 
original  act  of  1879,  and  added  those  which  now  take  their  place, 
obviously  on  account  of  the  provisions  of  section  15,  but  with 
what  precise  intent  or  effect  is  perhaps  uncertain. 

This  uncertainty  arises  from  tlie  fact  that  §  14  gives  the  mort- 
gage priority  to  the  extent  of  the  moneys  advanced  by  the  mort- 
gagee for  the  building,  while  §  15  makes  the  extent  of  the  priority 
depend  also  on  the  fact  that  the  money  advanced  has  been  actually 
applied  to  the  erection,  etc.,  of  the  building.  In  the  light  or  the 
decisions  which  hold  that  the  language  of  §  1,  gives  a  lien  for 
materials  furnished,  whether  they  are  actually  used  or  not  (see 
§  1,  note  2) ;  it  can  hardly  be  said  that  this  difference,  in  the  word- 
ing of  §§  14  and  15,  is  unimportant;  and  it  may  be,  therefore, 
that  a  mortgage,  which  falls  within  the  scope  of  §  14,  under  cer- 
tain circumstances,  namely,  where  the  mortgagee  has,  bona  fide, 
advanced  the  money  for  the  building,  but  the  builder  has  failed 


90  Mechanics  Lien  Law. 

to  apply  them  thereto,  will  have  priority  to  the  extent  of  such 
advance,  when,  under  the  same  circumstances,  a  mortgage  within 
the  scope  of  §  15,  but  not  within  §  14,  would  be  denied  priority 
to  the  like  extent. 

In  view  of  the  previous  course  of  the  legislation  in  the  matter, 
there  is  a  violent  presumption  of  common  sense,  that  the  legisla- 
ture did  not  wittingly  intend  any  such  result,  in  enacting  the 
present  revision ;  and  so,  it  may  be  held,  that  such  is  not  the  ti'ue 
construction  of  these  sections,  but  that  the  true  construction  is, 
that  the  extent  of  the  priority  of  mortgages,  within  the  scope  of 
§  14,  is  to  be  determined  by  the  provisions  of  §  15,  and  that  the 
office  of  the  words,  at  the  end  of  §  14,  is  merely  to  remove  any 
doubt  of  the  application  of  §  15,  according  to  the  full  generality 
of  its  terms.  This  construction  might  be  open  to  the  criticism, 
that  it  goes  far  to  render  the  whole  fourteenth  section  entirely 
superfluous  and  useless,  were  it  not  for  the  matter  to  which  we 
now  direct  attention: 

A   CLAIM  WITHIX   THE   TERMS   OF    THIS   SECTION 
MAY    BE    GOOD    ALTHOUGH    THE    OWNER   NEITHER 
CONTRACTED     THE    DEBT,    NOR    EXPRESSLY    CON- 
SENTED TO  THE  BUILDING.     The  statute  says  that,  m  all 
the  transactions  which  it  describes,  "the  building  so  erected  shall 
be  liable  for  the  pajTiient  of  any  debt  contracted,  etc.,  which  debt 
shall  be  a  lien  on  such  building  or  buildings  and  on  the  land,  etc." 
In  Mutual,  etc.,  Co.  v.  Walling,  6  Dick.  99,  it  was  intimated  that 
these  words  might  be  omitted,  in  reading  the  statute,  as  mere  ex- 
pletive, and  that  may  have  been  true  for  the  purposes  of  that 
case;    but  they  are  not  omitted  by  the  legislature  in  its  revision, 
and  there  is  a  presumption  that  they  are  neither  superfluous  nor 
ineffective.     It  may  be  held,  therefore,  that  they  afford  a  reason- 
ably clear  indication  of  a  legislative  pui-pose,  to   make  the  case, 
which   the   section    describes,   an   exception   to   the   generality   of 
§   7,   and   to   give   materialmen   and   laborers   a   lien    against   the 
estate   of   the  vendor,   notwithstanding   the   want   of  his   consent, 
whenever  such  claimants  can  show  that  these  claims  have  arisen 
under   such   special   circumstances.      Such   was   the   effect  given 
to  substantially  the  same  words  in  the  act  of  1883,  p.  24  (quoted 
under  §  10,  ante),  by  the  Court  of  Errors  and  Appeals  m  Amer- 
ican Brlch   Co.   V.   Drinkhouse,   30   Vroom  462;    as  was  pointed 
out  in  Murphy  v.  Hussa,  40  Vroom  381. 

Some  support  for  this  view  may  be  also  found  m  the  fact  that,  on 
any  other  hypothesis,  the  vendor  and  builder,  in  the  precise  case 
to  which  the  statute  applies,  by  making  the  delivery  of  the  deed 
at  a  date  later  than  the  time  within  which  any  lien  could  be 
filed,  could  render  the  statute  entirely  inefficacious.  On  the  other 
hand,  it  mav  be  said  that,  on  the  hjTothesis,  above  suggested 
as  a  possibilitv,  the  lien  of  a  claimant  would  affect  the  vendor's 
estate  prior  to  the  mortgage,  and  so  be  prior  to  the  latter^  even 
in  respect  of  its  quality  as  a  purchase  money  mortgage.  But  to 
this  it  may  be  answered  that  the  mortgage,  m  that  respect,  miglit 
have  effect,   by   relation,  from  the   time   the   bargain  was   made. 


Revision  of  1898,  §  15.  91 


Jacobus  V.  Mutual,  etc.,  Co.,  12  C.  E.  Gr.  604;  and  that,  if 
this  would  not  be  so  as  to  lien  claimants,  without  notice  of  such 
bargain;  the  vendor  could  protect  himself,  in  that  behalf,  by 
having  the  bargain  in  writing  and  recorded. 

All  recorded  or  registered  mortgages,  to  the  extent  of 
the  moneys  actually  advanced  and  applied  to  the  erect- 
ion, alteration,  or  repair  of,  or  the  addition  to,  a  building, 
are  prior  to  lien  claims. 

15.  Every  mortgage  given  or  to  be  given  upon  lands  in 
this  state  shall  have  priority  over  any  claim  that  may  be 
filed  in  pursuance  of  this  act  to  the  extent  of  the  money 
actually  advanced  and  paid  by  the  mortgagee  and  applied 
to  the  erection  of  any  new  building  upon  the  mortgaged 
lands  or  any  alterations,  repairs  or  additions  to  any  build 
ing  on  said  lands ;  provided,  such  mortgage  be  registered 
or  recorded  before  the  filing  of  any  such  claim.^ 

189S,  p.  538,  §  15;   1895,  p.  313,  §  6;   see  also  §  28 
post. 

The  section  is  substantially  identical  with  the  original  enact- 
ment of  1895. 

1.  SCOPE  OF  SECTION.  Some  discussion  of  this  matter, 
and  of  the  rule  in  regard  to  the  priority  of  advance  money  mort- 
gages, in  the  absence  of  statutory  regulation  thereof,  is  made  in 
the  note  to  the  previous  section  (14).  It  may  here  be  pointed 
out,  that  this  section  applies  to  all  mortgages,  but  that  it  applies 
to  them,  in  its  terms,  only  in  respect  of  their  quality  as  advance 
money  mortgages;  that  is,  on  the  one  hand,  the  section  cannot 
limit  the  priority  of  mortgages  other  than,  or  so  far  as  they  are 
other  than,  advance  money  mortgages.  Reed  v.  Rochford,  50  Atl. 
E.  70;  and,  on  the  other  hand,  it  cannot  limit  the  priority  of 
a  lieil  claim,  in  respect  of  encumbrances  other  than  advance 
money  mortgages.  As  already  noted  under  §  10,  supra,  the  ques- 
tion of  priority,  as  between  lien  claims  and  various  other  encum- 
brances, involves  an  analysis  of  that  section  as  well  as  of  this 
section,  and  §  28,  which  is  attempted  in  our  note  2  to  §  28,  which 
see. 

WHEN  ADVANCES  MUST  BE  MADE.  The  statute  gives  a 
mortgage  priority  for  advances  actually  made  and  applied,  etc., 
but  is  silent  as  to  the  time  within  which  they  must  be  made, 
in  order  to  secure  such  priority.  Under  the  rule  mentioned  in 
the  note  to  §  14,  a  mortgagee  who  has  obligated  himself  to  make 
advances,  will  be  protected  as  to  such  advances  although  made 
after  actual  notice  of  the  claims  of  others,  and  so  it  would  seem 
that  the  time,  within  which  the  advances  can  be  made  with  safety. 


92  Mechanics  Lien  Law. 

as  against  lien  claims,  is  not  determined  by  the  filing  of  lien 
claims. 

When  a  mortgage  is  given  to  secure  moneys  advanced  and  ac- 
tually used  for  the  erection  of  a  building,  such  mortgage  will  be 
prior  in  lien  to  lien  claims  filed  after  it  is  recorded,  although  the 
moneys  are  advanced  as  the  building  progresses  and  the  mort- 
gage was  executed  after  the  building  was  begun.  The  priority 
given  by  the  section  is  given  whether  the  mortgage  is  given  to 
secure  future  advances  or  money  already  advanced.  Young  v. 
Height,  40  Vroom  453,  citing  Erdman  v.  Moore,  29  Vroom  445, 
and  noting  that  it  is  not  in  conflict  with  the  above  holding  in- 
asmuch as  it  decided  a  case  arising  before  1895. 

But  a  mortgagee  who  claims  priority  because  his  mortgage  was 
recorded  before  any  lien  claim  is  filed  must  prove  that  the  loan 
thereby  secured  has  been  advanced  for,  and  applied  to,  the  erec- 
tion of  the  new  building.  Porch  v.  Agnew  Co.,  4  Rob.  328.  He 
does  not  show  that  by  showing  that  he  was  himself  the  builder 
and  took  the  mortgage  pending  the  progress  of  his  work,  to  se- 
cure the  pavment  of  his  contract  price.  Stiles  v.  Galhreath,  3  Rob, 
222;  s.  c,  aff.  1  Buch.  299. 

Lien  claim  to  be  filed  within  four  months.  Such  claim 
to  contain :  1.  Description  of  building  and  curtilage ;  2. 
Owner's  name  and  estate ;  3.  Contractor's  name ;  4.  Bill 
of  particulars  of  amounts,  prices,  dates,  credits,  etc.  Par- 
ticulars in  case  of  contract.  Claim  to  be  verified.  Eflfect 
of  misstatements  in  bill  of  particulars, 

16.  Every  person  intending  to  claim  a  lien  under  the 
provisions  of  this  act^  shall  within  (faur  mmhths,)  after 
the  labor  is  performed  or  the  materials  furnished^  for  which 
such  lien  is  claimed,  file  his  (or  her)  claim  in  the  office  of 
the  clerk  of  the  county  where  the  building  and  land  sub- 
ject to  such  lien  is  situate,^  which  claim  shall  contain: 

I.  A  description  of  the  building  and  of  the  lot  or  curti- 
lage upon  which  the  lien  is  claimed,  and  of  its  situation  suf- 
ficient to  identify  the  same  f 

II.  The  name  of  the  owner  or  owners  of  the  land  or  of 
the  estate  therein  on  which  the  lien  is  claimed  ;* 

III.  The  name  of  the  person  who  contracted  the  debt,  or 
for  whom,  or  at  whose  request  the  labor  was  performed  or 
the  materials  furnished  for  which  such  lien  is  claimed,  who 
shall  be  deemed  the  builder;^ 

IV.  A  bill  of  particulars  exhibiting  the  amount  and  kind 
of  labor  perfonned  and  of  materials  furnished,  and  the 
price  at  which  and  times  when  the  same  was  perfonned  and 


Revision  of  1898,  §  16.  93 

furnished,  and  giving  credit  for  all  the  payments  made 
thereupon  and  deductions  that  ought  to  be  made  therefrom, 
and  exhibiting  the  balance  justly  due  to  such  claimant,® 
which  statement,  when  the  work  or  materials  or  both  are 
furnished  by  contract,  need  not  state  the  particulars  of 
such  labor  or  materials  further  than  by  stating,  generally, 
that  certain  work  therein  stated  was  done  by  contract  at  a 
price  mentioned ;''  and  such  bill  of  particulars  and  state- 
ments shall  be  verified  by  the  oath  of  the  claimant  or  his 
agent  in  said  matter,  setting  forth  that  the  same  is  for  labor 
done  or  materials  furnished  in  the  erection  of,  {addition 
to,  repmr  of,  or  aUeraiion  in  or  of)  the  building  in  such 
claim  described,  at  the  times  therein  specified,  and  that  the 
amount  as  claimed  therein  is  justly  due;  and  when  such 
claim  shall  not  be  filed  in  the  manner  or  within  the  time 
aforesaid,  or  if  the  bill  of  particulars  shall  contain  any 
willful  or  fraudulent  misstatement  of  the  matters  above 
directed  to  be  inserted  therein,  the  building  or  lands  shall 
be  free  from  all  lien  for  the  matters  in  such  claim. ^ 

1898,  p.  538,  §  16;  1853,  p.  ^37,  §  6;  Rev.  1874,  %  11; 
1877,  p.  153;  1878,  p.  243;  1895,  p.  313,  §  4;  1896, 
p.  198. 

With  the  exception  of  the  words  above  included  in  parentheses, 
this  section  is  practically  the  same  as  originally  enacted  in  1853, 
and  re-enacted  in  the  Eevision  of  1874. 

In  1877  some  material  changes  were  made;  that  is,  that  act 
required  the  claim  to  stat^  the  true  date  when  the  building  was 
begun,  and  concluded  the  claimant  by  his  statement  of  it,  while 
invalidating  his  iien,  for  any  willful  or  fraudulent  misstatement 
of  it.  It  also  changed  the  requirement,  that  the  claim  should 
state  the  name  of  the  owner  "of  the  land  or  of  the  estate  therein 
on  which  the  lien  is  claimed"  to  the  requirement  that  it  should 
state  the  name  "of  the  owner  of  the  estate  therein,"  etc.  The 
act  of  1878,  however,  restored  the  section  to  its  original  form  in 
all  respects,  with  the  slight  change  of  the  insertion  of  the  words — 
"or  her,"  noted  in  parentheses  above. 

The  act  of  1895  provided  that  no  claim  should  be  a  lien  unless 
the  claim  was  filed  within  four  months  after  the  date  of  the  last 
work  done,  etc.,  nor  should  it  be  enforced  unless  suit  should  be 
begun  within  90  days  after  the  last  work  done.  etc.  The  act  ol 
1896  corrected  the  anomaly  of  the  act  of  1895,  by  fixing  the  same 
limitation  period,  four  months,  for  both  the  lien  claim  and  the 
suit.  The  present  revision  adopts  this  limitation  period  of  four 
months,  and  inserts  the  words — "addition  to,  repair  of  or  alteration 
in  or  of,"  above  noted  in  parentheses;    otherwise,  as  above  stated. 


94  Mecha^jics  Lien  Law. 

tlie  section  is  practically  the  same  as  it  was  in  1853  and  has  stood 
substantially  ever  since. 

1.  LIiynTATION  The  statute  plainly  says  that  the  lien  claim 
is  to  be  filed  after  the  labor  is  performed  or  the  materials  fur- 
nished for  which  claim  is  made.  It  requires  the  lien  claim  to  set 
forth  verified  statements,  inter  alia,  showing  that  such  is  the  fact. 
It  would  seem  plain,  therefore,  that  no  lien  can  validly  in- 
clude any  item  that  has  not  been,  in  fact,  furnished  prior  to  the 
time  it  is  filed.  It  is  said  in  Derrickson  v.  Edwards,  5  Dutch.  468, 
at  p.  470,  speaking  of  an  entire  contract,  that  "the  work  and  mate- 
rials" (for  which  it  provided)  "cannot  be  considered  as  furnished 
until  the  whole  contract  was  completed."  When,  therefore,  in  Ed- 
wards V.  Derrickson,  4  Dutch.  39,  at  p.  68,  it  is  said  that  "if  the 
whole  contract  price  was  payable  in  advance  the  lien  claim  need 
not  be  filed  till  the  contract  is  complete,"  it  is  surmised  that  it 
should  have  been  said,  not  that  the  lien  claim  need  not,  but  that  it 
could  not,  be  filed  till  the  contract  is  complete.  In  other  words,  it 
is  apprehended  that  if  a  lien  claim  is  filed  before  the  contract  works 
are  completed,  it  is  an  invalid  claim  and  the  subsequent  comple- 
tion of  the  works  wiU  not  help  it  any.  It  may  be  that,  when  a 
contract  provides  for  payments  in  instalments  as  the  work  pro- 
gresses, a  lien  claim  can  be  well  filed  for  one  or  more  of  such 
instalments  as  soon  as  earned,  but  the  lien  need  not,  and  ordinarily 
should  not,  be  filed,  in  such  a  case,  until  the  contract  work  is 
complete.  (See  Edwards  v.  Derrickson,  4  Dutch.  39,  at  p.  68, 
and  at  tlie  end  of  this  note,  as  to  the  number  of  items  which  to- 
gether make  one  indebtedness).  In  the  ease  last  cited,  at  p.  68, 
it  is  further  said  that  "when  the  entire  contract  price  is  payable 

at  the  conclusion  of  the  work no  lien  can  be  filed  until  the 

contract  is  completed  and  the  debt  due"  The  last  phrase  of  this 
quotation,  which  we  have  italicized,  was  obviously  spoken  obiter, 
and  it  is  hardly  likely  that  it  was  intended  to  assert  that  a  lien 
could  not  be  filed  until  the  indebtedness  is  legally  demandable. 
In  many  cases  a  claimant  is  entitled  to  demand  his  pay  as  soon 
as  he  has  completed  his  work;  and,  in  such  cases,  to  say  that  he 
cannot  file  a  lien  until  his  debt  is  due  and  demandable  is  to  say 
no  more  than  that  he  cannot  file  his  lien  until  he  has  completed 
his  work.  But,  where,  as  frequently  happens,  the  work  is  done 
under  a  contract  which  provides  for  an  architect's  certificate,  or 
the  production  of  releases  or  the  like  before  the  contract  price  is 
payable,  it  may  well  be  considered  that  a  lien  claim  can  be  safely 
filed  as  soon  as  the  work  is  completed,  and  the  compensation  has 
really  been  earned  (and  in  that  sense  may  be  said  to  have  become 
due)  ;  although  the  architect's  certificate  is  not  obtained,  or  some 
other  condition  precedent  is  not  performed,  until  thereafterwards. 

It  is  true  that  the  suit  to  enforce  the  lien  may  be  defeated  if  it 
be  begun  before  there  has  been  a  performance  of  such  condition 
precedent,  or  before  its  non-performance  has  become  legally  ex- 
cused (see  note  1  under  §  23,  post)  ;  but  as  such  a  defense  may  be 
waived  by  the  defendant's  omission  specially  to  plead  it,  it  seems 


Revision  ok  1898,  §  16.  95 

quite  obvious  that  a  si>ecial  plea  would  be  bad  which  alleged  the 
non-performance,  not  before  suit  begun,  but  merely  before  the 
lien  claim  was  filed. 

A  lien  claim,  of  course,  cannot  be  filed  for  a  debt  which  be- 
came due  more  than  four  months  prior  to  the  time  it  is 
filed.  But  where  a  number  of  items  together  make  one 
indebtedness,  and  this  is  so  whenever^  in  fact,  the  parties 
intended  that  result,  the  debt  becomes  due  on  the  date  of  the 
last  item;  so  that  the  provision  of  §  18,  which  requires  the  lien 
to  be  filed  within  four  months  from  the  date  of  the  last  work  done 
or  materials  furnished  (which  provision  must  be  read  together 
with  the  present  section),  entitles  the  claimant  to  file  a  claim  for 
the  whole  amovmt  of  such  indebtedness  within  such  four  months. 
Downing  ton,  etc.,  v.  Franlclin  Mills,  34  Vroom  32;  Bell  v.  Mecum, 
68  Atl.  149  (E.  &  A.).  Whether  the  various  items  of  a  claim  do 
constitute  one  entire  debt  or  not  is  for  the  jury  to  say,  when 
there  is  evidence  pro  and  contra.  Bell  v.  Mecum,  supra.  The 
last  day  for  such  filing  is,  pi'obably,  the  day  of  the  fourth  month 
corresponding  to  the  date  of  the  last  item.  Faith  v.  McNair,  13 
N.  J.  L.  J.  44. 

Any  substantial  work  in  pursuance  of  a  contract  is  work  from 
the  date  of  which  the  time  within  which  to  file  a  lien  claim  may 
be  reckoned.  Federal  Trust  Co.  v.  Guigues,  74  Atl.  652.  See 
also  note  6,  post,  stating  date,  etc. 

WAIVER  OF  LIEN  by  taking  notes,  etc.,  see  section  1,  note  3. 

LOSS  OF  LIEN  BY  LACHES.  Although  a  lien  claim  may 
be  filed  and  sued  upoii  in  dlie  season,  it  may  be  lost  through  the 
laches  of  the  claimant.  For  example — A  prior  mortgagee  is  not 
bound  to  take  notice  of  such  a  lien  until  the  claim  is  filed;  and, 
hence,  a  claimant,  who  has  not  filed  his  claim  until  after  a  suit 
to  foreclose  such  a  prior  mortgage  is  begun,  and  so  is  not  made  a 
party  thereto,  and  who  does  not  then  apply  to  be  made  a  party,  will 
be  cut  off  by  such  foreclosure.  Raymond  v.  Post,  10  C.  E.  Gr.  447; 
Gerard  v.  Birch,  1  Stew.  317. 

2.  THE  OBJECT  OF  FILING  a  lien  claim  is  to  give  inter- 
ested parties  notice.  Vreeland  Co.  v.  Knickerbocker  Co.,  68  Atl. 
215  (E.  &  A.). 

The  validity  of  a  lien  claim  is  not  affected  by  the  fact  that  a 
mortgagor,  after  getting  his  loan,  procured  such  claims  to  be 
filed,  without  disclosing  to  his  mortgagee,  at  the  time  the  latter 
loaned  him  the  money,  that  there  were  any  such  claims  which 
could  be  filed.     Gordon  v.  Torrey,  2  McCart.  112. 

3,  DESCRIPTION  OF  BUILDING.  If  it  does  not  appear 
that  the  materials  were  supplied  for  a  designated  building,  a  lien 
claim  is  nevertheless  good  if  it  does  appear  that  they  were  sup- 
plied to  the  defendant  who,  in  fact,  did  use  them  for  the  build- 
ing specified  in  the  lien  claim.  Morris  County  Bank  v.  Rocka- 
way  Mfg.  Co.,  1  MeCart.  189. 

DESCRIPTION  OF  CURTILAGE.  The  omission  of  this 
description  from  a  lien  claim  would  be  fatal,  unless  cured  by 
amendment.     American  Brick  Co.  v.  Drinkhouse,  29  Vroom  432. 


96  Mechanics  Lien  Law, 

If  the  description  is  incorrect,  it  may  be  altered  on  application. 
See,  as  to  this,  §  20,  post,  and  section  21  post. 

APPORTIONMENT  OF  CLAIM.  As  to  this,  in  the  ease  of 
separate  buildings  on  distinct  lots,  see  §  22,  post. 

4.  OWNER'S  NAME.  The  owner's  name  must  be  specified. 
The  lien  claim  cannot  bind  any  interest  or  estate  other  than  that 
of  the  person  named  as  owner  therein.  But  a  misnomer  is  un- 
doubtedly amendable,  in  the  absence  of  good  reason  for  refusing 
it.      Vreeland  Co.   v.  KnickerhocJcer  Co.,  supra. 

CHANGE  OF  TITLE.  Where  the  title  changes  before  the 
lien  is  filed,  the  owner,  at  the  time  it  is  filed,  is  the  person  to  be 
named,  in  the  lien  claim,  as  owner.  Edwards  v.  Derrickson,  4 
Dutch.  39;  s.  c,  5  Dutch.  468;  Rohins  v.  Bunn,  5  Vroom  322; 
Slingerland  v.  Lindsley,  1  N.  J.  L.  J.  115;  Erdman  v.  Moore,  29 
Vroom  445.  If  the  owner  convey  after  contracting  for  the  build- 
ing, the  right  of  lien  is  not  thereby  lost  or  impaired.  Edwards  v. 
Derrickson,  4  Dutch.  39;  5  Id.  468;  Bates  Co.  v.  Trenton  Co.,  41 
Vroom  684  (E.  &  A.);  Stewart  Co.  v.  Trenton  Co.,  42  Vroom 
568  (E.  &  A.).  ^  .        ^     ^ 

A  mortgage  does  not  effect  a  change  of  ownership.  Gordon  v. 
Torrey,  2  McCart.  112.  . 

DESCRIPTION  OF  ESTATE.  The  act  does  not  required  the 
estate  to  be  specified,  but  only  the  owner's  name.  Cornell  v.  Mat- 
thews. 3  Dutch.  522.  ,        ^      , 

OWNERS  OF  ESTATES  BY  ENTIRETY.  Although  the 
claim  is  against  the  estate  of  the  husband  only,  it  is  proper  that 
the  lien  claim  should  name  both  husband  and  wife  as  owners. 
Washburn  v.  Burns,  5  Vroom  18. 

OWNERS  OF  EQUITABLE  ESTATES.  See,  under  §  1,  note 
5,  Equitable  Estates. 

OWNERS  OF  TERMS  FOR  YEARS.  A  lien,  for  alterations 
made  by  a  tenant,  can  be  claimed  only  against  such  tenant,  as 
owner.     Corcoran  v.  Jones,  12  N.  J.  L.  J.  38. 

5.  BUILDER'S  NAME.  In  case  the  true  builder  has  not  been 
named  in  the  lien  claim,  the  claimant  cannot  hare  a  recovery, 
without  amendment.     Bartley  v.  Smith,  14  Vroom  321. 

6.  BILL  OF  PARTICULARS.  The  statute  should  be  strictly 
followed,  in  all  these  particulars;  and  a  charge  for  labor  must 
not  be  blended  with  one  for  materials.  A  claim  is  not  necessarily 
bad,  for  including  illegitimate,  as  well  as  legitimate,  items;  for 
it  may  stand,  quoad  the  good  items;  but  if  the  good  and  the  bad 
items  are  inseparably  blended,  the  claim  will  be  bad.  Associates 
V.  Davison,  5  Dutch.  415;  Edwards  v.  Derrickson,  4  Dutch.  39; 
Whitenack  v.  Noe,  3  Stock.  321;  Jacobus  v.  Mutual  Benefit,  12 
C.  E.  Gr.  604. 

THE  COST  OF  HAULING  engines  from  the  freight  station 
to  their  site  in  the  power  house  under  erection  is  properly  included 
in  the  claim,  when  the  duty  to  haul  them  was  part  of  the  contract 
to  erect  them.    Bates  Co.  v.  Trenton  Co.,  41  Vroom  684. 


Revision  of  1898,  §  16.  97 

STATING  ITEMS  FOR  REPAIRS  AND  ALTERATIONS. 
A  claim  may  properly  include  items  for  repairs  (and  now  for  al- 
terations and  repairs),  as  well  as  for  construction;  but,  as  the 
priorities  of  claims  for  repairs  (or  now  for  repairs  or  altera- 
tions), and  those  of  claims  for  construction,  depend  upon  dif- 
ferent facts,  the  lien  claim,  in  each  case,  should  distinguish  the 
items  for  repairs  or  alterations  from  its  other  items.  James  v.  Van- 
Horn.  10  Vroom  353;  Burd  v.  Huff.  17  N.  J.  L.  J.  80.  Where 
the  lien  claim  is  for  repairs  and  the  proof  in  the  suit  is  that  the 
bill  is  for  erection  of  a  new  building,  there  is  a  fatal  misdescrip- 
tion.    Cox  V.  Flanagan,  2  Atl.  33  (Bird,  V.  C). 

STATING  DATE  WHEN  THE  WORK,  ETC.,  WERE  SUP- 
PLIED. The  statute  does  not  require  that  the  time  when  the 
building  was  begun  shall  be  stated  in  the  lien  claim,  Gordon  v. 
Torrey.  2  McCart.  112;  but  it  does  require  that  the  date  when  each 
item  of  work  was  done  and  each  item  of  materials  was  furnished 
should  be  stated,  American  Brick  Co.  v.  Drinhhouse,  29  Vroom 
432 ;  and  the  date  of  the  last  item,  as  given  in  the  lien  claim,  is 
the  date  from  which  is  to  be  reckoned,  the  time  within  which 
suit  t-o  enforce  the  lien  must  be  begun.  And  if,  in  fact,  such 
date  is  given  in  the  lien  claim,  as  earlier  than  it  was  in  fact,  the 
date,  as  thus  given,  and  not  as  it  really  was  in  fact,  will  control. 
Bement,  etc.,  v.  Trenton  Co.,  2  Vroom  246;  s.  c,  3  Vroom  513. 

7.  STATING  CONTRACT  WORK.  Wlien  the  claim  is  for 
a  contract  job,  the  bill  of  particulars  is  sufficient  if  it  states  the 
kind  of  labor  and  materials,  the  fact  that  they  were  done  and  fur- 
nished, under  contract,  prior  to  a  given  date,  and  the  contract 
price.  Edwards  v.  Derrickson.  4  Dutch.  39;  Williamson  v.  N.  J., 
etc.,  B.  R.  Co.,  1  Stew.  296;  Associates,  etc..  v.  Davison.  5  Dutch. 
415,  421. 

8.  AMENDMENTS.  A  lien  claim  is  not  a  part  of  the  files  or 
records  of  the  Circuit  Court  and  so,  prior  to  the  statutes,  embodiexi 
below  in  §§  19  and  20.  there  was  no  way  of  amending  any  defects 
in  a  lien  claim,  after  it  was  tiled ;  as  the  powers  of  the  Circuit 
Court  to  grant  amendments  does  not  extend  beyond  its  own  files 
and  records.  Vreeland  v.  Boyle,  8  Vroom  346.  The  provisions  of 
the  sections,  above  mentioned,  under  which  amendments  may  now 
be  made,  should  be  carefully  examined. 

"There  is  nothing  in  the  spirit  or  letter  of  the  act  that  renders 
an  error  made  in  stating  the  name  of  the  owner  fatal  to  a  SUB- 
SEQUENT ATTEMPT,  EITHER  BY  AMENDMENT  OR  BY 
FILING  A  SEPARATE  CLAIM,  to  reach  estates  or  interests 
owned  by  parties  other  than  him  who  was  named  as  owner  in  the 
claim  first  filed."  Vreeland  Co.  v.  Knickerbocker  Co.,  68  Atl.  215 
(E.  &  A.). 

A  lien  claim  ag-ainst  a  corporation,  as  owner,  which  has  been 
declared  insolvent  and  for  which  a  receiver  has  been  appointed, 
may  be  defective  for  not  naming  the  receiver  as  owner;  but  if 
so,  the  defect  is  amendable,  and  equity  will  deal  with  it  as  though 

7 


98  Mechanics  Lien  Law. 

amended,  if  there  is  no  equitable   ground   for  doing   otherwise. 
Doty  V.  Auditorium  Co.,  56  Atl.  720;  s.  c,  aff.  20  Dick.  768. 

Lien  docket  in  County  Clerk's  office,  to  sho-w  :  1.  O^wrner's 
name ;  2.  Contractor's  name ;  3.  Description  of  building 
and  curtilage;  4.  Amount  of  claim,  and  claimant's  name. 
Index.    Pees. 

17.  Every  county  clerk  shall,  at  the  expense  of  the  county, 
■provide  a  suitable,  well-boimd  book,  to  be  called  the  lien 
docket,  in  which,  upon  the  filing  of  any  lien  claim,  he  shall 
enter : 

I.  The  name  of  the  owner  of  the  building  and  land  upon 
which  the  same  is  claimed ; 

II.  The  name  of  the  builder  or  person  who  contracted 
the  debt; 

III.  The  description  of  said  building  and  lands ; 

IV.  The  amount  claimed  and  by  whom  claimed. 

And  the  said  clerk  shall  make  a  proper  index  of  the 
same,  in  the  name  of  the  owner  of  the  land  and  building; 
and  such  clerk  shall  be  entitled  to  twelve  cents  for  filing 
each  claim,  or  contract,  and  at  the  rate  of  eight  cents  per 
folio  for  such  entry  made  in  the  lien  docket,  and  six  cents 
for  every  search  in  the  ofiice  for  such  lien  claim,  or  contract. 

1898,  p.  538,  §  17;  1853,  p.  437,  §  7;  Rev.  1874,  §  12. 

This  section  is  practically  the  same  as  when  first  enacted,  as  §  7 
of  the  act  of  1853,  and  subsequently  embodied  in  the  Revision  of 
1874,  as  §  12. 

The  following  act,  1904,  p.  243,  is  here  inserted.  It  is,  in  effect, 
supplemental  to  §  17. 

"1.  It  shall  be  the  duty  of  the  clerks,  registers  and  other  oific*crs 
who  are  now  obliged  by  law  to  receive  and  record  deeds,  mort- 
gages, bills  of  sale  and  other  conveyances,  or  whose  duty  it  is 
to  enter,  file  or  record  judgments,  decrees,  mechanics'  lien  claims, 
attachments,  recognizances,  sheriff's  bonds  or  other  liens  and  en- 
cumbrances on  real  estate  in  this  State  to  keep,  in  addition  to 
the  entry  and  record  of  the  same  already  provided  by  law,  an 
exact  record  of  the  hour  and  minute  when  the  same  shall  be  filed, 
entered  or  recorded  in  their  respective  olfices,  and  such  entry, 
filing  or  recording  shall  be  deemed  to  take  effect  and  be  notice 
thereof  from  and  as  of  the  exact  time  of  the  actual  entry,  filing  or 
recording  of  the  same,  and  such  record,  filing  or  entry  in  the 
office  of  every  clerk,  register  or  other  officer  in  this  State  shall 
be  prima  facie  evidence  in  all  courts  and  places  of  the  exact  time 
of  such  record,  entry  or  filing." 


Revision  of  1898,  §  18.  99 

Lien  claim  must  be  filed  and  summons  must  be  issued 
within  four  months  from  the  date  of  last  item  of  claim : 
time  of  issuance  must  be  endorsed  on  lien  claim :  suit  must 
be  prosecuted  diligently:  extension  of  time  for  prosecut- 
ion by  agreement  filed  and  noted. 

18.  Xo  debt  shall  be  a  lien  by  virtue  of  this  act,  imless 
a  lien  claim  is  filed  as  hereinbefore  provided,  within  (four 
months)  from  *  ihe  date  of  the  last  work  done  or  materials 
furnished  for  which  such  debt  is  due;  *  nor  shall  any  lien 
be  enforced  by  virtue  of  this  act  unless  the  summons  m 
the  suit  for  that  purpose  shall  be  issued  within  a  fowr 
mmUhs  a  from  the  date  of  the  last  work  done  or  materials 
furnished  in  such  claim  ;^  and  the  time  of  issuing  such  sum- 
mons shall  be  endorsed  on  tlic  claim  by  the  clerk  upon  the 
sealing  thereof,  and  if  no  such  entry  be  made  within  four 
months  from  such  last  date,^  §  or  if  such  claimant  shall  fail 
to  prosecute  his  claim  diligently  withiti  one  year  from  the 
d-ate  of  issuing  such  summons  or  such  further  time  as  the 
court  may  by  order  direct,^  §  such  lieu  shall  be  discharged,  a 
and  all  sails  now  pending  where  a  claim  has  been  filed  and  a 
summons  issued  withim  four  months  from  the  date  of  the 
last  work  done  or  materials  furnished  for  which  said  debt 
is  claimed  shall  be  included  within  the  provisions  of  this  act; 
A  provided,  that  the  time  in  which  such  lien  may  be  enforced 
by  summons  may  be  extended  for  any  further  period,  not 
exceeding  four  months,  by  a  written  agreement  for  that 
purpose,  signed  by  said  land-owner  and  said  claimant,  and 
annexed  to  the  said  claim  on  file  before  such  time  herein 
limited  therefor  shall  have  expired,  in  which  case  the  county 
clerk  shall  enter  the  word  "Extended"  in  the  margin  of 
the  lien  docket  op|X)site  such  claim,  and  any  claimant,  upon 
receiving  wa-itten  notice  from  the  oAvner  of  the  lands  or 
building  requiring  him  to  commence  suit  on  such  claim 
within  thirty  days  from  the  receipt  of  such  notice,  shall 
only  enforce  such  lien  by  suit  to  be  commenced  witliin  said 
thirty  days.* 

1898,  p.  538,  §  18;  1858,  p.  4S7,  §  12;    Rev.  181k, 
§  IS;  1888,  p.  m;  1895,  p.  SIS,  §  J,;  1896.  p.  198. 

In   the  acts  of  1853,  the  Eev.  of  1874,  and  the  act  of 


1888,  the  words  here  were — "the  furnishing  the  materials  or  per- 
forming- the   labor     for  which   such  debt  is  due,   and   such  part 


100  Mechanics  Lien  Law. 

of  aiiy  claim  filed  as  may  be  for  work  or  materials  fiiviiislied 
more  than  one  year  before  the  filing  of  the  same,  shall  not  be 
recovered  against  the  building  or  land  by  virtue  of  this  act." 

All  of  these  acts  also  made  the  period  of  limitation,  for  filing 
the  lien  and  bringing  suit,  one  year.  This  i^eriod  was  reduced 
to  four  months  by  the  acts  of  1895  and  1896  (see  note  to  §  16 
above).  .  . 

The  act  of  1888  was  the  first  enactment  to  insert  the  provision, 
indicated  above  between  the  section  marks  §  —  §,  making  the 
period  three  years,  which  was  then  reduced  to  one  year  by  the 
act  of  1895.  The  words  between  the  carets  a  — a  were  first  in- 
serted by  the  act  of  1896.  With  these  exceptions,  this  section,  as 
it  now  stands,  has  been  the  law  since  1853. 

By  the  act  of  1910,  page  229,  the  above  section  was  amend- 
ed to  read  as  follows : 

No  debt  shall  be  a  lien  by  virtue  of  this  act  unless  a  lien 
claim    is    filed    as    hereinbefore    provided    within    four    (4) 
months  from  the  date  of  the  last  work  done  or  material  fur- 
nished for  which  such  debt  is  due ;  nor  shall  any  lien  be  en- 
forced by  virtue  of  this  act  unless  the  summons  in  the  suit 
for  that  purpose  shall  be  issued  within  four  (4)  months  from 
date  of  the  last  work  done  or  materials  furnished  in  such 
claim;  and  the  time  of  issuing  such  summons  shall  be  en- 
dorsed on  the  claim  by  the  clerk  u^wn  the  sealing  thereof, 
and  if  no  such  entry  be  made  within  four  (4)  months  from 
such  last  date,  or  if  such  claimant  shall  fail  to  prosecute  his 
claim  diliaentlv  within  one  (1)  vear  from  the  date  issuing 
such  summons,  or  such  further  time  as  the  court  may  by 
order  direct,  such  lien  shall  be  discharged,  and  all  suits  now 
pending  where  a  claim  has  been  filed  and  a  summons  issued 
within  four  (4)  months  from  the  date  of  the  last  work  done 
or  materials  furnished  for  which  said  debt  is  claimed  shall 
be  included  within  the  provisions  of  this  act ;  provided,  that 
the  time  in  which  such  lien  may  be  enforced  by  summons 
may  be  extended  for  any  further  period,  not  exceeding  four 
(4)  months,  by  a  written  agreement  for  that  purpose,  signed 
by  said  landowner  and  said  claimant,   and  annexed  to  the 
said  claim  on  file  before  such  time  herein  limited  therefor 
shall  have  expired,  in  which  case  the  county  clerk  shall  enter 
the  word  "Extended"  in  the  margin  of  the  lien  docket  oppo- 
site such  claim,  and  any  claimant,  upon   receiving  written 
notice  from  the  owner  of  the  lands  or  building  requiring  him 
to  commence  suit  on  such  claim  within  thirty  days  from  the 
receipt  of  such  notice,  shall  only  enforce  such  lien  by  suit  to 


Eevision  of  1898,  §  18.  101 

be  commenced  Avithin  said  thirty  days ;  p)Ovided,  fartlier, 
that  Avhen  any  snit  is  brought  in  any  district  court  on  such 
lien  claim,  it  shall  be  the  duty  of  the  plaintiff,  or  his  attorney, 
to  obtain  from  the  clerk  of  such  district  court  a  certificate  to 
the  effect  that  a  suit  has  been  commenced  in  such  district 
court  on  such  lien  claim,  specifying  the  court  where  the  suit 
is  brought,  the  day  and  year  when  such  suit  was  commenced, 
and  the  day  and  year  when  the  summons  is  made  returnable, 
which  said  certificate  the  plaintiff  or  his  attorney  shall  pre- 
sent to  the  clerk  of  the  county  in  which  such  lien  claim  is 
filed  within  four  (4)  days  after  issuing  of  summons;  it  shall 
thereupon  be  the  duty  of  the  clerk  of  said  county  to  endorse 
upon  such  lien  claim  that  a  suit  has  been  commenced  on  the 
same,  specifying  the  court  where  suit  is  brought,  the  day  and 
year  when  sunmions  was  issued,  and  when  such  is  made 
returnable. 

See  also  under  §  23  post  for  the  other  new  legislation  in  this 
same  connection.  The  following  notes  were  prepared  before  this 
amendment  was  adopted. 

1.  See  §  16,  note  1,  and  note,  that  the  date  of  the  last  item, 
as  given  \\\  the  lien  claim,  fixes  the  time  to  reckon  from  even  al- 
though the  date  so  given  is  earlier  than  the  true  date  actually 
was.       Bemenf  v.  Trenton  Co.,  2  Vroom  246;  s.  c,  3  Vroom  513. 

2.  In  James  v.  Van  Horn.  10  Vroom  353,  it  was  said;  and  in 
Hall  V.  Spaidding,  11  Vroom  166,  it  was  held,  that  only  such  per- 
sons as  could  be  prejudiced,  by  the  omission  to  endorse  on  the 
lien  claim  the  date  when  the  summons  was  issued,  could  object 
to  such  failure,  and  that,  therefore,  as  to  them,  a  judgment  would 
be  valid  where  the  endorsement  was  made  after  the  expiration 
of  the  statutory  period,  or  even  where  no  endorsement,  prior  to 
judgment,  was  made.  These  cases  must  be  deemed  to  have  been 
overruled,  by  the  Court  of  Errors,  in  Wheeler  v.  Almond,  17  Vroom 
161,  which  held,  that  the  failure  to  endorse  on  the  lien  claim  the 
date  of  the  summons,  within  the  statutory  i)eriod  (then  of  one 
year  now  of  four  months  from  the  date  of  the  last  work  done), 
or  within  thirty  days  after  due  notice  toi  sue,  discharges  the  lien 
as  effectually  as  payment  of  the  debt;  and  that  the  power  of 
amendment  conferred  by  §§  19  and  25,  cannot  be  invoked  to 
cure  such  failure;  because  the  endorsement  is  intended,  by  the 
statute,  to  be  a  notice,  on  the  files  of  the  county  clerk,^  that  the 
remedy  is  being  pursued,  but  is  no  part  of  the  lien  claim,  or  of 
the  proceedings,  by  suit,  to  enforce  it.  See  also  Cox  v.  Flanagan, 
2  Atl.  33  (Bird,  V.  C),  to  the  effect  that  such  endorsement  can- 
not be  made  after  the  summons  has  been  issued,  which  is  clearly 


102  Mechanics  Lien  Law. 

contrary   to   the   decision  in   Wheeler  v.  Almond,  and  the  plain 
words  of  the  statute. 

See  §  31,  clauses  III.  and  IV.,  for  the  provisions  which  require 
the  endorsement  to  be  made  within  thirty  days  after  notice  to 
sue  has  been  given. 

3.  The  construction  of  this  clause  of  the  statute  was  the  sub- 
ject of  consideration  in  a  case  in  the  Court  of  Errors  and 
Appeals,  Ennis  v.  Eden,  etc.,  Co.,  48  Atl.  E.  610;  which  merits 
careful  attention.  The  case  came  into  the  Court  of  Errors  on 
a  writ  of  en-or  to  the  Morris  Circuit,  and  presented,  for  review, 
the  record  of  a  judgment  on  a  lien  claim  entered,  by  default, 
sixteen  months  after  the  suit  was  begun  and  thirteen  months 
after  the  right  to  enter  such  judgment  had  accrued.  After  the 
judgment  was  entered,  an  application  to  open  it  was  made,  on 
the  ground  that  it  had  been  entered,  after  the  lien  had  been  dis- 
charged, by  lack  of  diligent  prosecution.  This  application,  which 
was  made  in  the  name  of  the  defendant  corporation,  which  was 
both  builder  and  owner,  was  denied  after  due  hearing,  on  rule 
to  show  cause  and  proofs  taken  thereunder. 

The  record  of  the  judgment,  and  the  outbranches  brought  up 
with  it,  showed  the  following  facts,  besides  those  already  above 
related:  On  the  day  the  summons  was  issued,  but  after  it  was 
served,  the  defendajit  went  into  the  hands  of  a  receiver,  appointed 
by  the  Court  of  Chancery  of  this  State.  The  receiver  did  not 
dispute  the  correctness  of  the  indebtedness  to  the  plaintiff,  but 
admitted  it,  and  subsequently,  on  selling  the  lands  of  the  de- 
fendant, gave  the  purchaser  notice  that  they  were  sold  subject  to 
the  lien  claim  of  the  plaintiff.  The  plaintiff  was  at  no  time  en- 
joined from,  prosecuting  his  suit,  but  did  not  do  so,  because  he 
thought  it  unnecessary,  in  view  of  the  fact,  that  the  amount  ot 
his  claim  was  undisputed  by  the  receiver,  who  had  also  adjusted 
the  dividend  that  would  be  due  on  it.  Nearly  thirteen,  and  more 
than  twelve,  months  after  suit  was  begxm.  the  plaintiff,  on  a  veri- 
fied petition  of  the  facts,  obtained,  exparte,  an  order  extending  the 
time  for  prosecution,  and  entered  his  judgment  withm  the  time 

so  extended.  ,    , ,    i    .  ^i      •    j  j. 

On  this  case,  the  majority  of  the  court  held  that  the  judgment 
must  be  affirmed,  and  four  of  the  Justices  (Dixon,  Collins,  Bogert 
and  Voorhees),  dissenting,  held  that  it  ought  to  be  reversed. 

Two  opinions  were  filed,  one  by  Justice  Depue,  representing 
the  majority  of  the  court,  and  a  dissenting  opinion  by  Justice 
Dixon  It  is  conceded,  in  both  opinions,  that  the  judgment  could 
not  stand,  if  the  facts  showed  that  the  plaintiff  had  failed  to  exer- 
cise reasonable  diligence  in  prosecuting  his  suit;  and  that  the 
only  lack  of  diligence  that  it  could  be  claimed  he  had  been  guilty 
of,  was  his  failure  to  enter  his  judgment  within  the  year,  ihis 
in  the  opinion  of  the  minority,  was  a  failure  to  exercise  due  dili- 
gence, while  in  the  opinion  of  the  majority  it  was  not,  tor  the 
reason  that,  inasmuch  as  the  receiver  was  empowered  to  adjust 
such  claims  without  requiring  them  to  be  passed  into  judgment. 
DeMott  V.  SiocJcton,  etc.,  Co.,  5  Stew.  124;   and,  inasmuch  as  the 


Revision  of  1898,  §  18.  103 

judgment  would  have  effected  nothing  beyond  the  ascertainment 
of  the  debt,  which  was  undisputed,  since  an  attempt  to  enforce 
it  by  execution  would  liave  been,  undoubtedly,  enjoined;  the  en- 
try of  the  judgment  would  have  been  an  idle  and  nugatory  act. 

The  following  abstract  of  the  two  opiuons  given  in  the  case  will 
be  found,  we  think,  helpful: 

JUSTICE  DEPUE'S  OPINION. 

The  statute  requires  an  order,  allowing  further  time,  to  be 
made  while  the  lien  claim  was  still  in  force  and  undischarged: 
it  cannot  authorize  the  court  to  revive  a  lien  claim  which  by 
force  of  the  act  has  expired.  No  reason  exists  for  straining  the 
construction  of  the  act  so  as  to  extend  to  the  lien  claimant,  in 
the  prosecution  of  hi*  suit,  unlimited  time  at  the  discretion  of 
this  court.  "It  is  quite  possible  that  the  section  may  be  so  con- 
strued as  to  allow  the  owner  of  the  land,  after  the  expiration  of 
the  year,  to  have  from  the  Circuit  Court  an  order  fixing  a  time 
within  which  the  claimant  shall  prosecute  his  claim,  where  he 
has  prosecuted'  it  diligently  but  not  successfully  within  the  year. 
But  this  is  not  before  us  for  decision." 

The  inquiry  in  this  case  is  whether  the  plaintiff's  failure  to 
enter  judgment  discharged  the  lien.  That  is,  was  it  a  failure  dili- 
gently to  prosecute  his  suit  within  the  year,  within  the  meaning 
and  intent  of  the  statute.  "That  presents  a  question  of  fact,  to 
be  found  in  the  first  instance  by  the  Circuit  Court." 

"The  Circuit  Court  would  have  no  power  to  make  an  order  that 
the  lien  was  discharged  for  want  of  diligence  in  the  prosecution 
of  the  suit.  That  question  is  one  of  fact  upon  which  the  claimant 
is  entitled  to  go  to  the  jury." 

We  think  the  non-entry  of  the  judgment  under  the  circum- 
stances of  the  case,  was  the  course  which  a  reasonably  prudent 
man  wovdd  have  pursued,  and  that,  therefore,  the  plaintiff  has 
not  failed  in  diligence. 

JUDGE  DIXON'S  OPINION. 

The  statute  means  that  the  claimant  shall  prosecute  his  claim 
with  such  diligence  as  to  obtain  judgment  within  the  year. 

The  reasonable  implication  is  that  an  extension  order  may  be 
made  when  it  is  shown  that  notwithstanding  diligent  prosecution 
of  the  claim,  judgment  has  not  been  obtained  within  the  year, 
which  may  be  shown  after  the  year  has  ended. 

The  statute  gives  the  claimant  one  year  after  issuing  summons 
in  which  to  enter  judgment;  if  he  does  not  enter  it  within  that 
year,  then  he  must  show  to  the  court  that  he  has  diligently  prose- 
cuted his  claim,  and  thereupon,  the  court  may  by  order  direct 
that  he  have  furtlier  time  in  which  to  enter  judgment.  If  judg- 
ment be  not  entered  within  the  year  (when  there  is  no  such 
order),  or  within  the  time  limited  by  an  order  legally  made,  when 
there  is  one;    the  lieu  is  discharged. 

After  the  expiration  of  the  year  or  of  the  period  limited  by 
order,  the  defendants  interested  in  the  land  may  secure  conclusive 


104  Mechanics  Lien  Law, 

evidence  that  the  lien  is  discharged  by  moving  to  non  pros  the 
claimant,  as  to  the  lien,  a  motion  which  must  prevail  unless  the 
claimant,  by  proof  of  due  diligence,  show  himself  entitled  to  more 
time.  Without  an  order  for  further  time,  a  judgment  by  default, 
entered  after  the  year's  lapse,  would  be,  on  its  iface,  illegal,  as  it 
would  have  awarded  a  lien  which  by  the  statute  had  been  dis- 
charged. 

But  such  a  judgment  entered  within  the  time  limited  by  an 
order  taken  after  the  lapse  of  the  year  would,  on  face  be  good 
and  could  be  reversed  only  by  its  appearing  that  the  order  was 
improperly  allowed.  This  is  what  appears  in  this  case  and  so 
judgment  should  be  reversed. 


A  careful  consideration  of  the  case  justifies  the  following  prop- 
ositions : 

PROPOSITION  1.— LAPSE  OF  TIME  ALONE  DOES  NOT 
CONSTITUTE  LACHES.  The  failure  of  the  plaintiff,  to  en- 
ter a  judgment  within  the  year,  does  not  discharge  the  lien;  when 
facts  appear  which  show  that  such  failure  was  not  a  lack  of  due 
diligence. 

PROPOSITION  2.— JUDGMENT  BY  DEFAULT.  FACTS 
TO  OVERCOME  APPARENT  LACHES  HOW  MADE  TO 
APPEAR.  When  a  judgment  by  default  is  taken,  after  the  lapse 
of  a  year,  but  within  the  period  limited  by  an  extension  order, 
made  also  after  the  lapse  of  the  year,  and  granted,  ex  i>arte,  on  a 
verified  petition,  setting  forth  facts  which  show  that  the  delay, 
in  not  entering  such  judgment,  was  the  course  a  reasonably  pru- 
dent man  would  have  pursued;  the  facts  necessary  to  show  that 
the  plaintiff's  delav  was  not  a  lack  of  due  diligence,  do  appear. 

PROPOSITION  3.— WHAT  LACHES  DISCHARGES  LIEN. 
If  the  plaintiff's  judgment  is  not  entered  within  the  year,  because 
of  his  lack  of  due  diligence,  in  fact ;   the  lien  is  thereby  discharged. 

PROPOSITION  4.— LIEN  ONCE  GONE  CANNOT  BE  RE- 
STORED. If  the  lien  is,  in  fact,  discharged,  by  the  plaintiff's 
lack  of  due  diligence,  in  prosecuting  his  suit,  it  cannot  thereafter 
be  restored,  or  resuscitated,  by  any  order,  or  action,  of  the 
court. 

PROPOSITION  5.— LIEN  NOT  DISCHARGED  BY 
LACHES  DURING  THE  YEAR.  The  failure  of  the  plaintiff 
to  take  any  proceeding  in  the  suit  as  soon  as  he  reasonably  could 
do  so,  is  not  such  a  lack  of  due  diligence  as  will  discharge  the 
lien,  prior  to  the  lapse  of  the  year. 

A  lack  of  such  diligence,  such  as  the  failure  to  bring  on  the 
trial  at  the  next  term  after  issue  joined,  may,  by  causing  a  non 
suit,  indirectly  operate  to  defeat  the  lien  within  the  year,  but  that 
is,  of  course,  a  different  thing. 

The  foregoing  propositions,  we  think,  were  all  ruled  in  the  case. 
We  append  the  following  propositions  and  quaeres,  as  of  interest. 

PROPOSITION  6.— LACHES  A  QUESTION  OF  FACT 
FOR  THE  JURY.  The  question  wliether  the  plaintiff's  failure 
to   enter  judgment   within    the   year   is,   or   is  not  under   all   the 


Eevision  of  1898,  §  18.  105 

circumstances  of  each  case,  a  failure  of  due  diligence,  is  a  ques- 
tion of  fact  on  which  the  plaintiff,  and  the  defendants  interested 
in  tlie  land  as  well,  are  entitled  to  have  the  verdict  of  a  jury, 
when  there  is  any  evidence  that  it  was  not  such  failure.  This, 
as  we  think,  the  case  probably  rules. 

PROPOSITION  7.— VALIDITY  OF  JUDGMENT  BY  DE- 
FAULT ENTERED  AFTER  THE  YEAR  WITHOUT  ORDER. 
A  judgment  entered  by  default  after  the  lapse  of  the  year,  with 
no  extension  order  first  taken,  is  bad  on  its  face,  as  to  the  land, 
as  having  been  entered  after  the  lien  has  presumably  been  dis- 
charged. 

This  the  dissenting  opinion  asserts.  It  may  be  true,  as  the  con- 
trary does  not  appear  to  be  ruled  in  the  case.  But  so  also,  it  may 
not  be  true,  as  there  appears  to  be  some  intimations  in  Justice 
Depue's  opinion,  that  beyond  allowing  an  order  to  the  land  owner, 
fixing  a  time  within  which  the  plaintiif  shall  prosecute  his  case 
or  be  non-suited,  the  Circuit  Court  cannot  make  an  order  after 
the  year  has  elapsed.  If  this  be  so,  it  would  of  necessity,  follow 
that  a  jud^rment  by  default,  in  the  given  case,  would  not  be  bad, 
on  its  face.     But  assmning  the  contrary  to  be  the  law,  theJi — 

PROPOSITION  8.— EFFECT  OF  EXTENSION  ORDER 
TAKEN  AFTER  YEAR'S  LAPSE.  As  a  corollary  of  Proposi- 
tion No.  6,  the  only  office  of  an  extension  order,  granted  after 
the  year  has  elapsed,  is  to  make  a  subsequent  judgment  by  de- 
fault appear,  on  its  face,  to  have  been  legally  entered. 

This  is  so  on  the  hypothesis  assumed,  because  where  a  delayed 
judgment  is  taken  upon  trial  and  verdict,  such  an  order  could  not 
preclude  a  trial  of  the  issue  of  the  plaintiff's  laches,  nor  could  it 
operate  as  evidence  to  prove  such  issue  in  the  plaintiff's  favor. 

QUAERE  1.— EFFECT  OF  ORDER  TAKEN  BEFORE 
YEAR'S  LAPSE.  Does  an  extension  order  taken  before  the 
year's  lapse  operate  to  preclude  any  question  of  the  plaintiff's 
laches  if  the  judgment  is  thereafter  entered  within  the  time  limited 

thereby  ? 

QUAERE  2.— SECOND  ORDER.  Before  the  expiration  of 
one  extension  order,  can  a  second  one  be  taken? 

QUAERE  3.— ORDER  TO  DISCHARGE  LIEN  FOR 
LACHES.  Has  the  Circuit  Court  power  to  make  an  order  dis- 
chaging  the  lien  for  lack  of  diligence  in  prosecution  of  the  suit?^ 

This  is  denied  in  the  opinion  of  Justice  Depue  and  asserted  in 
the  dissenting  opinion.     It  does  not  seem  to  have  been  ruled  m 

In  Doty  V.  Auditorium  Co..  56  Atl.  720;  aff.  20  Dick.  768,  as  in 
Eiinis  V.  Eden,  supra;  and  DeMoff  v.  Stockton  Co..  5  Stew.  124,  it 
was  held  that  when  a  claimant  has  duly  filed  his  claim,  naming 
an  insolvent  corporation  as  owner,  or  the  receiver  thereof,  he  need 
not  bring  suit,  to  establish  his  claim,  unless  notified  to  do  so ;  even 
although  the  receiver  rejects  his  claim,  instead  of  admitting  it  as 
in  the  two  cases  cited.  It  is  held  that  it  is  enough  for  him,  m 
such  case,  to  present  his  claim  to  the  receiver,  and  pursue  his 
rights  by  appeal  to  the  Court  of  Chancer%%  if  they  be  disregarded. 


106  Mechanics  Lien  Law. 

It  was  ako  held  that  he  must  be  ^iven  preference  in  such  case, 
for  his  lien,  although  he  does  not,  in  presenting  his  claim  to  the 
receiver,  show  that  he  has  filed  a  lien  claim,  if  his  claim  filed  with 
the  receiver  shows  that  it  is  for  work  for  which  he  was  entitled 
to  a  lien,  and  if,  in  fact,  he  did  duly  file  a.  lien  claim  therefor. 
It  was  also  held  that  such  claimant's  right  of  priority  attaeJies 
to  the  proceeds  of  the  sale  of  the  premises,  and  is  not  affected  by 
the  fact  that  they  were  sold  clear  of  all  encumbrances,  in  the  ab- 
sence of  anything  to  show  that  they  sold  for  a  less  price  on  that 
account, 

4.  NOTICE  TO  SUE.  When  a  claimant  has  been  notified  by 
the  owner  to  sue  on  his  lien  claim  within  thirty  days,  he  cannot 
escape  the  obligation  arising  from  such  notice,  by  thereafter  filing 
a  new  lien  claim  for  the  same  debt.  Bewail  v.  Hawkins,  17  Vroom 
161,  166. 

Amendment  of  lien  claim  and  order  therefor  by  justice 
of  supreme  court. 

19.  At  any  time  before  judgment  on  a  lien  claim,  a  jus- 
lice  of  the  supreme  court,  on  application  of  the  lien  claim- 
ant, and  on  reasonable  notice  to  all  parties  interested,  may 
order  such  lien  claim  to  be  amended,  in  matter  of  substance 
as  well  as  in  matter  of  form,  whenever  it  shall  appear  to 
him  that  such  amendment  can  be  justly  made ;  and  when- 
ever such  amendment  shall  be  ordered,  the  same  shall  be 
put  in  writing  and  signed  by  said  justice,  and  shall  be  then 
filed  in  the  office  of  the  county  clerk,  and  for  his  services 
under  this  section  the  said  justice  shall  l>e  entitled  to  a  fee 
of  {fifty  cents  for  the  use  of  the  sta^te).^ 

1901,  p.  329,  §  1;  1S9S,  p.  538,  §  19;  Rev.  187 J,,  §  U. 

Prior  to  the  amendment  of  1901  the  act  had  the  words,  "five 
dollars"  in  place  of  the  words  in  parentheses;  otherwise  the  sec- 
tion has  remained  unchanged  since  its  first  enactment  in  the  Ke- 
vision  of  1874,  as  §  14. 

1.  Prior  to  the  enactment  of  this  section  (1874)  there  was  no 
means  by  which  a  lien  claim  could  be  amended,  Derrickson  v.  Ed- 
wards, 5  Dutch.  468 ;  Vreeland  v.  Boyle,  8  Vroom  346 ;  Vreeland 
V.  Bramhall.  10  Vroom  1 ;  and,  if  it  was  defective,  in  any  material 
particular,  of  form  or  substance;  the  whole  claim  failed,  as  a 
lien.  James  v.  Van  Horn,  10  Vroom  353;  American  Brick  Co.  y. 
Drinkhouse,  29  Vroom  432.  It  has  recently  been  held,  however,  in 
Doty  V.  Auditorium  Co.,  56  Atl.  720;  s.  c,  aff.  20  Dick.  768,  that 
a  lien  claim  which  names  an  insolvent  corporation  as  owner,  m- 
stead  of  the  receiver,  may  be  dealt  with  by  the  Court  of  Chan- 
cery as  though  it  had  been  amended,  when  there  is  no  equitable 


Revision  of  1898,  §  19.  107 

ground  for  a  contrary'  course;  and  in  Vreeland  Co.  v.  Knicker- 
bocker Co.,  68  Atl.  215,  it  was  held,  by  the  Court  of  Errors 
and  Appeals,  in  a  case  where  the  wrong  person  was  named  as 
owner,  that  the  error  might  be  corrected  either  by  amendment,  or 
by  filing  a  new  lien  claim. 

WHAT  MAY  BE  AMENDED.  The  authority  given  by  the 
section  ia  to  allow  amendments  of  the  lien  claim.  Authority  to 
amend  the  proceedings,  in  the  suit  to  enforce  the  lien,  must  be 
sought  in  §  25,  post,  which  see.  And  no  authority  is  given, 
either  by  §  25  or  by  this  section,  to  amend  that  which  is  neither 
the  lien  claim,  nor  a  proceeding,  the  amendment  of  which,  will  aid 
in  determining  the  controversy  in  suit.  Hence,  the  endorsement 
of  the  commencement  of  the  suit,  which  by  §  18  is  directed  to  be 
made  on  the  back  of  the  lien  claim  is  not  an  amendable  matter. 
Wheeler  v.  Almond,  17  Vroom  161;  Bewail  v.  Hawkins,  17  Vroom 
166.  See  further,  as  to  what  can  be  done  in  case  of  omitted  en- 
dorsement, §  18.  supra. 

WHAT  DEFECTS  MAY  BE  AMENDED.  The  statute  says 
the  lien  claim  may  be  amended  "in  matter  of  substance  as  well  as 
in  matter  of  form."  In  James  v.  Van  Horn,  supra,  an  amendment 
was  allowed,  where  the  claim  had  blended  debts  against  several 
buildings,  so  as,  to  apportion  to  each  building  the  particular  in- 
debtedness incurred  for  it:  in  American  Brick  Co.  v.  Drinkhouse, 
30  Vroom  162,  the  claim  had  failed  to  give  the  dates  when  tlie 
several  items  were  supplied  and  the  claimant  was  allowed  to  amend 
by  filing  a  new  bill  of  particulars  giving  such  dates  with  the 
requisite  verification.  In  this  latter  case,  the  Court  of  Errors 
and  Appeals  held,  that  the  statute  authorized  an  amendment  which 
did  not  enlarge  the  claim  either  in,  the  amount  of  the  debt,  the 
estate  to  be  charged,  or  the  persons  affected ;  but  we  think  it  clear, 
that  the  court  did  not  intend  to  express  the  opinion  that  the  power 
of  amendment  was  limited  to  such  amendments  only  as  was  the 
one  there  allowed.  The  error  of  naming  the  wrong  person  as  own- 
er is  imdoubtedly  amendable.  Doty  v.  Auditorium  Co.,  supra; 
Vreeland  Co.  v.  Knickerbocker  Co.,  68  Atl.  215. 

WILFUL  MISSTATEMENTS  in  the  lien  claim,  will  not  be 
permitted  to  be  amended,  as,  where  the  claimant  has  knowingly 
named,  as  builder,  one  who  was  the  employer  of  the  actual  builder. 
Bartley  v.  Smith,  14  Vroom  321. 

WHEN  AMENDMENTS  MAY  BE  ALLOWED.  The  words 
of  the  statute  are  clear.  A  defective  lien  claim  is  not  a  nulity, 
and  may  be  amended,  at  any  time  before  judgment  is  entered; 
although  the  application  to  amend  is  delayed  until  after  the  expi* 
ration  of  the  time  limited  by  §  18  for  filing  a  claim.  American 
Brick  Co.  V.  Drinkhouse,  supra. 

AUTHENTICATION  OF  AMENDMENTS.  The  amended 
lien  claim  need  not  be  sworn  to:  all  that  is  required  is  that  the 
amendments  be  put  in  writing  and  signed  by  the  justice.  Ameri- 
can Brick  Co.  v.  Drinkhouse,  29  Vroom  432. 

ADVISORY  OPINION.  An  application  for  amendment  can- 
not be  certified   ro  the   Supreme  Court  for  its  advisory   opinion. 


108  Mechanics  Lien  Law. 

There  is  no  authority  for  such  a  proceeding,  either  at  common 
law  or  by  force  of  §§  247  and  296  of  the  Practice  Act.  In  re  Mar- 
garum,  26  Vroom  12;  Marcus  Sayre  Co.  v.  Moore,  19  N.  J.  L.  J. 
110.  See,  however,  the  case  of  Bartley  v.  Smith,  supi*a,  in  which 
the  question,  whether  an  amendment  to  the  lien  claim,  as  well 
as  to  the  sunuuons,  pleading,  etc.,  ought  to  be  allowed,  was  certi- 
fied to  the  Supreme  Court,  for  its  advisory  opinion  which  that 
court  gave;  although,  perhaps,  without  considering  the  question 
of  its  power  to  do  so. 

EEVIEW  OF  OEDEK.  It  is  to  be  noticed  that  the  order  al- 
lowing an  emendment  of  the  lien  claim  (other  than  an 
order  altering  the  description  of  the  curtilage)  is  not 
one  which  can  be  made  in  the  suit,  and  that,  there- 
fore, it  is  only  open  to  collateral  attack  in  that  suit, 
that  is,  to  attack  for  that  the  justice  was  without  jurisdiction 
to  make  it.  If  it  is  desired,  on  other  grounds,  to  review  the  de- 
cision allowing  such  order,  that  can  only  be  done  by  proper  pro- 
ceedings, presumably  by  certiorari,  directly  taken  for  that  pur- 
pose.    American  Brich  Co.  v.  Drinkliouse ,  30  Yroom  462. 

Amendment  of  description  of  curtilage  by  justice  of  Su- 
preme Court,  and  rule  therefor. 

20.  At  any  time  before  the  entry  of  final  judgment  in  a 
suit  under  this  act,  it  shall  be  lawful  for  a  justice  of  the 
supreme  court,  upon  the  application  of  either  the  owner, 
builder  or  lien  claimant,  and  upon  reasonable  notice  to  the 
others  to  alter  the  description  of  the  curtilag'e  as  set  forth 
in  the  lien  claim,  and,  in  the  fonn  of  a  nile  of  court,  in  the 
suit,  to  determine  the  true  size  and  description  of  the  cur- 
tilage ;  and  in  all  subsequent  proceedings  in  such  suit,  or  in 
relation  thereto,  the  curtilage  so  determined  shall  be  treated, 
as  if  the  same  had  l>een  described  in  the  original  lien  claims, 
and  such  justice,  for  his  services  under  this  section,  shall 
be  entitled  to  a  fee  of  two  dollars,  which  shall  be  paid  by  the 
applicant,  and  may  be  taxed'  with  the  costs  in  such  suit; 
(provided,  tJud  the  nmendiments.  authorized  in  this  and  in 
the  newt  preceding  section.,  shalf  noi  affect  the  rights  of  any 
bona  fide  purchaser  or  mortgagee,  acquired  hetwre)h  the  time 
of  filing  the  original  lien  cXaim.\  and  that  of  filing  said 
amendmenis)  .^ 

1898,  p.  538,  §  20;   1868,  p.  369,  §  2;   Rev.  1874,  §  15- 

The  words  in  parentheses  were  added  by  the  Revision  of  1874; 
otherwise  the  section  has  remained  the  same  as  first  enacted  in 

1868. 


Revisio:s-  of  1898,  §  21.  109 

1.  As  to  what  is  the  proper  curtilage,  see  the  next  section  (21). 

A  DEFECTIVE  DESCRIPTION,  which  includes  too  much 
land,  does  not  render  the  lien  claim  bad.  In  such  a  case,  prior 
to  the  enactment  of  this  section,  the  proper  curtilage  could  have 
been  settled  at  the  trial,  as  one  of  the  facts  in  issue;  and,  if  a 
less  curtilage,  than  the  one  described,  was  found  to  be  proper, 
judgment  was  to  be  given  accordingly.  Edwards  v.  Derrichson,  4 
Dutch.  39;  s.  c,  5  Dutch.  468.  Such  is  presumably,  still  the 
rule,  when  no  application  to  alter  the  description  of  the  curtil- 
age is  made;  and,  if  it  be  found  that  the  plaintiff  is  entitled  to 
a  special  judgment  against  the  lands  described  in  the  claim ;  such 
finding  cannot  be  attacked,  on  error,  unless  it  affirmatively  ap- 
pears that  it  was  erroneous  in  point  of  law,  James  v.  Van  Horn, 
10  Vroom  353.  As  to  the  possibility  of  attacking  a  judgment,  in 
a  collaterial  proceeding,  on  the  ground  that  the  curtilage  is  ex- 
cessive, or  erroneous,  see  post,  under  §  24. 

EFFECT  OF  ORDEE,  ALTERING  DESCRIPTION  OF 
CURTILAGE.  If,  on  application,  under  this  section,  an  order 
is  made  altering  the  description  of  the  curtilage ;  the  extent  of 
the  curtilage,  so  far  as  it  could  be  in  issue  on  the  trial,  is  thereby 
determined  (and  the  same  may  be  true  if  the  justice,  on  applica- 
tion and  hearing,  refuses  to  alter  the  description,  see  Gerard  v. 
Birch.  1  Stew.  317);  and  such  determination  (being,  by  the  ex- 
prc-ss  words  of  the  statute,  "a  rule  of  court  in  the  suit,"  and  so 
reviewable  on  writ  of  error)  can  be  reviewed  only  when  it  was 
erroneous,  in  point  of  law.  American  Brick  Co.  v.  DrinMouse, 
30  Vroom  402.  As  to  the  possibility  of  attacking  a  judg-ment,  in 
a  collateral  proceeding,  on  the  ground  that  the  curtilage  is  ex- 
cessive, or  erroneous,  see  post,  under  §  24. 

OMISSION  OF  DESCRIPTION  OF  CURTILAGE.  It  is 
questionable  whether  this  section  covers  the  case  of  a  lien  claim 
which  entirely  omits  to  describe  any  curtilage.  It  seems  to  con- 
template the  case  of  a  mistaken  description,  not  that  of  an  omitted 
one,  see  American  Brich  Co.  v.  Drinkhouse,  29  Vroom  432.  The 
quaere  is,  is  a  lien  claim  amendable  if  it  omits  to  describe  any 
curtilage,  and,  if  it  be  amendable,  is  it  amendable  under  §  19 
or  under  this  section'^  The  alteration  of  the  description  of  the 
curtilage  is  to  be  a  rule  of  court  in  the  suit;  the  order  allowing 
an  amendment  is  not  such  a  rule. 

Extent  of  curtilage  defined,  when  not  otherwise   fixed 
by  enclosure,  usual  building  lot  and  map,  etc. 

21.  When  the  curtilage  or  lot  on  which  the  build ing-  is 
erected  shall  not  be  surrounded  by  an  enclosure  separating 
it  from  adjoining  lands  of  the  same  owner,  then  the  lot  on 
which  the  building  lien  shall  extend,  shall  be  such  tract  as 
in  the  place  of  its  location  is  usually  kno^vn  and  designated 
as  a  building  lot,  and  bounded  by  the  lines  laid  down  for 
its  boundaries  on  any  map  made  for  the  sale  of  it  or  on 


110  Mechanics  Lien  Law. 

file  in  any  public  office,  to  lay  out  in  lots  the  tract  including 
it,  and  in  cases  where  no  such  map  exists,  such  lot  may  be 
designated  by  the  claimant  in  the  lien  claim,  but  in  no  case 
shall  the  same  exceed  half  an  acre,  or  include  any  building 
not  used  and  occupied  with,  or  intended  to  be  used  and 
occupied  with,  the  building  for  the  cost  of  which  the  lien 
is  claimed.^ 

189S,  p.  638,  §  21;  1863,  p.  275,  §  3;  Rev.  lS7Jf,  §  16. 
See  also,  1868,  p.  369,  §  1. 

This  section  is  the  same  as  it  was  first  enacted  in  1863  and  has 
so    stood    ever    since. 

1.  WHAT  IS  THE  PEOPER  CURTILAGE.  Prior  to  the 
enactment  of  this  section  it  was  decided  that  the  curtilage,  in- 
tended by  the  act  to  be  subject  to  the  lien,  was  so  much  land  as 
might  be  necessary  for  the  convenient  and  beneficial  enjoyment 
of  the  building,  on  which  the  work  was  done;  and  that,  there- 
fore, its  proper  extent,  in  each  case,  would  be  a  question  of  fact, 
which  must  be  taken  to  have  been  correctly  settled,  on  the  trial, 
unless  it  appeared  on  the  record  that  an  error  in  law  in  that 
behalf  had  been  made.  Derrickson  v.  Edivards,  5  Dutch.  468; 
and  see  also,  Van  Dyne  v.  Van  Ness,  1  Halst.  Ch.  485 ;  and  also, 
note  to  §  20,  supra,  as  to  settlement  of  curtilage  on  an  applica- 
tion to  alter  the  description  thereof. 

The  enactment  of  this  section  limited  the  curtilage  to  the  usual 
building  lot,  when  there  is  a  map;  and  to  half  an  acre,  when  there 
is  not;  but  this  limitation  applies  only  in  a  case  falling  within 
the  scope  of  the  act.  In  Gerard  v.  Birch,  1  Stew.  317,  it  was 
said  (per  Runyon  Ch.)  that  the  limitation  of  the  curtilage  to 
half  an  acre  applies  only  when  there  has  been  no  description  of 
the  curtilage  by  the  owner,  and  when  the  means  of  designation 
by  map  do  not  exist. 

In  Federal  Trmt  Co.  v.  Guigues,  74  Atl.  652,  it  is  said  (by  V.  C. 
Howell)  that,  when  §  21  does  not  apply,  the  Court  of  Chancery, 
in  a  foreclosure  case,  will  determine  the  proper  curtilage  by  eon- 
fining  it  to  so  much  of  the  land  as  is  necessary  to  the  convenient 
and  beneficial  enjoyment  of  the  building  on  which  the  claimant's 
work  or  materials  were  bestowed. 

The  scope  of  the  act  is  limited  to  the  case  where  the  owner 
has  not  surrounded  the  lot  built  upon  with  an  enclosure  separat- 
ing it  from  his  adjoining  lands,  James  v.  Van  Horn,  10  Vroom 
353 ;  Gerard  v.  Birch,  1  Stew.  317 ;  and  so,  if  the  owner  has  en- 
closed a  large  tract  with  a  fence,  but  has  other  adjoining  lands, 
the  whole  of  such  large  tract  may  be  subjected  to  a  lien  for  a 

building   erected   on   it.  „  ^    .        i  •  i    .i. 

Therefore,  in  James  v.  Van  Horn,  10  Vroom  363,  m  which  the 
judgment  established  a  lien  on  the  whole  of  a  tract  of  50  acres, 
which  was  surrounded  by  a  fence,  as  it  did  not  appear,  on  the  re- 


Revision  of  1898,  §  22.  Ill 

cord,  whether  the  owner  had  adjoining  lands  or  not;  it  was  held, 
that  the  propriety  of  the  judgment  could  not  be  questioned,  on 
writ  of  error;  because  the  facts,  necessary  to  show  that  the  case 
was  one  which  fell  within  the  scope  of  the  act  (in  that  case, 
that  owner  had  no  ajoining  lands),  must  have  been  found,  or  in- 
disputably have  appeared,  in  order  to  make  it  apparent,  on  the 
record,  that  an  error  in  law  had  been  committed  in  giving  the 
judgment,  and  the  record  showed  no  such  finding  or  facts. 

Apportionment  of  claim  among  several  buildingB.  Lien 
claim  in  such  case  to  contain  what.  Suits  in  such  case 
how  to  be  brought.  Release  of  one  building,  not  to  im- 
pair lien  against  others. 

22.  Whenever  any  person  or  persons  shall  hereafter  fur- 
nish any  material  or  perform  any  labor,  for  the  erection 
and  construction  of  two  or  more  buildings,  where  such  build- 
ings are  built  and  constructed  by  the  same  person  or  per- 
sons, it  shall  be  lawful  for  the  person  or  persons  so  furnish- 
ing such  materials  or  performing  such  labor  to  divide  and 
apportion  the  same  among  the  said  buildings,  in  proportion 
to  the  value  of  the  materials  furnished  to  and  the  labor 
performed  for  eacli  of  said  buildings,  and  to  file  with,  his, 
her  or  their  lien  claim  therefor  a  statement  of  the  amount 
so  apportioned  to  each  building,  in  lieu  of  the  bill  of  par- 
ticulars required  by  the  sixteenth  section  of  this  act,  which 
said  lien  claim  when  so  filed  may  be  enforced  under  the 
provisions  of  this  act  in  the  same  manner  as  if  said  mate- 
rials had  been  furnished  and  labor  performed  for  each  of 
said  buildings  separately ;  and  if  the  person  or  persons  who 
shall  have  furnished  such  materials  or  performed  such  labor 
shall  have  released  his  or  their  lien  claim  against  any  one 
or  more  of  such  buildings,  or  if  any  one  or  more  of  such 
buildings  shall  have  been  built  and  constructed  under  a 
contract  in  writing  duly  filed,  pursuant  to  this  act,  such 
release  or  such  filing  of  a  contract  shall  not  affect  or  impair 
the  lien  or  claim  of  such  person  or  persons  against  the  build- 
ing or  buildings  not  so  released,  or  not  so  built  and  con- 
structed by  contract,  nor  the  lots  or  curtilages  whereon  the 
same  are  erected.^ 

1898,  p.  538,  §  22;  1873,  p.  71;  Rev.  187 U,  §  17. 

This  section  has  remained  unchanged  since  its  first  enactment 
in  1873. 


112  Mechanics  Lien  Law. 

1.  It  was  held  in  Johnson  v.  Algor,  36  Vroom  363,  that  the 
statute  does  not  contemplate  that  there  shall  be  a  separate  and 
distinct  lien  claim  filed  for  each  one  of  the  buildings;  there 
should  be  one  lien,  claim  filed,  containing  a  statement  of  the  ap- 
portionment of  the  debt  among  the  several  buildings  according 
to  the  statute.  But  when  proceedings  are  begun  to  enforce 
a  lien,  in  a  case  where  an  apportionment  is  necessary,  there  must 
be  a  separate  summons  declaration,  etc.,  and  judgment  and  exe- 
cution against  each  building  and  its  curtilage. 

But  in  Culver  v.  Liehernuan,  40  Vroom  341,  it  was  held,  by  the 
Court  of  Errors  and  Appeals,  that  when  a  single  debt  exists  for 
the  erection  of  several  buildings,  the  lien  therefor  is  to  be  en- 
forced by  a  single  lien  claim,  a  single  suit  and  a  single  declaration 
in  which  the  debt  is  to  be  apportioned  among  the  several  build- 
ings and  curtilages  according  to  the  respective  liability  of  each; 
and  Johnson  v.  Algor,  so  far  as  it  held  otherwise,  was  overruled. 
In  delivering  the  opinion  in  Culver  v.  Liehennan.  Justice  Fort, 
reads  the  words  of  the  section :  "Where  such  buildings  are  built 
and  constructed  by  the  same  person  or  persons,"  as  referring  only 
to  the  contractor,  and  not  to  the  owner,  or  owners;  and  hoRs 
that  a  careful  reading  of  §§  16,  22  and  24  shows  that  the  stat- 
utory intent  is  to  give  a  single  suit  against  the  builder,  upon  a 
single  indebtedness,  and  to  bring  into  that  suit,  by  the  lien  claim, 
summons  and  declaration,  the  builder  and  all  persons  who,  as 
owners  or  mortgagees,  have  any  interest  in  the  property  against 
which  a  special  judgment  is  sought.  To  that  end,  it  seems,  that, 
in  a  proper  case,  the  plaintiff  may  in  one  suit  join,  as  defendants, 
different  owners  of  several  tracts.  The  lien  claim,  as  weU  as 
the  declaration  must,  of  course,  apportion  the  claim  and  describe 
the   several    buildings    and   curtilages. 

If  the  lien  claim  fails  to  make  the  necessary-  apportionment, 
and  to  designate  specifically  the  amount  claimed  on  each  build- 
ing it  will  constitute  no  encumbrance  on  the  premises.  Morns 
Cointy  Bank  v.  Rockaway.  etc..  Co.,  1  C  E.  Gr.  150;  but  such 
a  defect  may  be  amended,  at  any  time  before  judgment.  James 
V  Van  Horn.  10  Vroom  353;  and  see  §  19,  supra;  but,  if  not 
amended,  the  judgment  would  be  subject  to  collateral  attack. 
Morris  County  Bank  v.  Rockaway,  etc..  Co.,  supra. 

It  was  questioned,  in  the  case  last  cited,  whether  such  a  lien 
claim  would  be  valid,  in  case  all  the  buildings  are  on  the  same 
tract;  but,  as  all  the  buildings  were,  in  fact,  on  different  tracts, 
no  opinion  was  expressed  on  the  question  adverted  to,  although  it 
was  intimated  by  the  Chancellor  (Green)  that  such  a  claim  would 
be  bad,  unless  the  buildings  upon  the  same  tract,  were  withm  the 
same  curtilage  and  mere  appurtenances  of  a  mam  building,  ihis 
seems   to  have  been    otherwise   considered   in  Johnson    v.   Algor, 

above  cited.  ^  .^         4.  +^„„ 

Where  several  buildings  (such  as  a  row  of  apartments  or  tene- 
ments) are  erected  for  a  single  owner  upon  what  is  really  a  sin- 
gle plot  of  land,  it  may  be  questionable  whether  there  is  any 
need  of  an  apportionment  at  all.     As  this  is  a  question  likely  to 


Revision  of  1898,  §  23.  113 

be  presented  frequently  in  practice,  the  writer  ventures  the  ad- 
vice that  the  only  safe  course  is  to  make  such  apportionment 
whenever  it  is  possible  to  do  so;  since  each  such  tenement  is 
capable  of  being  separately  conveyed  or  encumbered;  and,  there- 
fore, the  owner  is  entitled  to  have  the  claim  apportioned  so  as 
to  preserve  to  him  the  valuable  right,  freely  to  deal  with  his 
property  as  severable  parcels,  if  he  chooses.  It  may  not  be  en- 
tirely correct,  but  it  may  be  pi*actically  so,  to  say  that  the  pos- 
sibility of  allotting  a  definite  curtilage  to  each  tenement  will 
determine  the  necessity  of  making  an  apportionment.  By  this 
test,  a  four-story  building  with  an  apartment  on  each  floor  is  in- 
divisable,  but  a  row  of  tenements  is  not.  A  building  may  be  di- 
vided by  a  vertical,  but  not  by  a  horizontal,  plane,  for  the  purpose 
of    such   apportionment. 

Suit  on  lien  claim  may  be  in  the  Circuit  or  District  Court. 
Parties.     Form  of  summons.     Service  of  summons.     Sub-  q 

stituted  service  of  summons,  and  aflSdavit  in  such  case.  / 

23.  When  a  claim  is  filed  aoreeably  ro  the  provision^^  ot  j 

this  act,  upon  any  lien  created  thereby,  the  same  may  be       \^v 
enforced  by  suit,  in  the  circuit  court  of  the  county  where  A\ 
such  building  is  situated,^   which  suit  shall  be  commenced        "^ 
by  summons  against  the  builder  and  the  owner  of  the  land 
and  building-   *  and  every  person,  holding  a  mortgage   of 
reco^'d  against   the   property   affected  hy  said  claim    whose 
moiigage  mould  he  cut  off  hy  a  sale  under  said  claim^  *  in 
the  following  or  like  form : 

Summon  A.  B.  builder,  and  C.  D.  owner  (or  if  the  owner 
contracted  the  debt,  A.  B.  builder  and  owner),  *  and  E.  F. 
mortgagee  (if  th&re  he  a  mortgage  or  mortgages)  "  to  appear 
before  the  Circuit  Court  in  and  for  the  County  of  , 

at  ,  in  the  said  County,  on  the  day  of 

,  That  the  said  A.  B.  (the  builder)  may  answer 
unto  G.  H.  (the  claimant)  of  a  plea  (as  in  an  action  uix>n 
contract)  for  which  the  said  G.  H.  claims  a  building  lien  on 
certain  buildings  and  lands  of  said  C.  D.  (describing  the 
building  and  lands  as  in  the  claim  on  file)  :  *and  upon 
which  said  E.  F.  holds  a  mortgage  of  record.  * 

And  the  said  summons  shall  be  directed,  tested,  and  made 
returnable,*  and  mav  be  served  and  returned  in  the  same 
manner  as  other  writs  of  summons ;  and  such  summons  may 
be  seiwed  upon  the  defendants,  or  either  of  them,  in  any 
county  of  this  state,  by  the  sheriff  thereof,  and  for  this  pur- 
pose the  same  or  a  duplicate  thereof,  may  be  issued  to  such 

8 


114  Mechanics  Lien  Law. 

sheriff ;  and  if  any  defendant  cannot  be  found  in  this  state, 
it  may  be  served  upon  him  by  affixing  a  copy  thereof  npon 
such  building,  and  also  by  serving  a  copy  on  such  defendant 
personally,  or  by  leaving  it  at  his  residence  ten  days  before 
its  return,  which  shall  be  deemed  actual  service,  or  in  case 
such  defendant  resides  out  of  this  state,  by  affixing  a  copy 
on  such  building  and  sending  a  copy  by  mail,  directed  to 
him  at  the  post  office  nearest  his  residence,  or  in  case  his 
residence  is  not  known  to  the  plaintiff,  then  by  affijxing  a 
copy  to  such  building,  and  by  inserting  it  for  four  weeks, 
once  in  each  week,  in  some  newspajDcr  of  this  state,  published 
or  circulating  in  the  county  where  such  building  is  situate, 
either  of  which  shall  be  legal  seiwice ;  and  when  an  affidavit 
shall  be  made  and  filed  of  the  facts  authorizing  and  consti- 
tuting any  such  service,  not  made  by  a  sheriff  or  officer,  the 
suit  may  proceed  against  the  party  so  served  as  if  such 
summons  had  been  returned  seiwed  by  the  sheriff.^ 

1898,  p.  538,  §  23;  1853,  p.  437,  §  8;  Rev.  1874,  §  18; 
1884,  p.  260,  §  1. 

The  words  between  the  asterisks  are  inserted  in  the  Revision 
of  1898,  because  of  the  provisions  of  the  act  of  1884,  which  was 
the  first  enactment  which  made  it  necessary  or  proper  to  make 
mortgagees  of  record  parties  to  lien  claim  suits;  otherwise  the 
section  has  remained  the  same  as  enacted  in  1853. 

By  the  act  of  1910,  p.  229,  approved  April  8th,  the  fore- 
going section  was  amended  to  read  as  follows: 

When  a  claim  is  tiled  agi-eeably  to  the  provisions  of  this 
act  upon  any  lien  created  thereby,  the  same  may  be  enforced 
bv  suit  in  the  Circuit  Court  of  tlie  countv  where  such  build- 
ing  is  situated,  or  in  any  District  Court  of  the  county  (pro- 
viding the  claim  does  not  exceed  five  hundred  dollars)  where 
such  building  is  situated,  and  when  the  suit  is  brought  in  a 
District  Court  the  practice  shall  be  as  nearly  as  possible  the 
same  as  now  provided,  or  may  hereafter  be  provided  by  law 
in  District  Courts  in  action  on  contracts,  which  suit  shall  be 
commenced  by  summons  against  the  builder  and  the  owner 
of  the  land  and  building,  and  every  person  holding  a  mort- 
gage of  record  against  the  property  affected  by  said  claim, 
whose  mortgage  would  be  cut  off  by  a  sale  under  said  claim^ 
in  the  following  or  like  fonn : 

Summon  A.  D.,  builder,  and  C.  D.,  owner  (or  if  the  owner 


Revision  of  1898,  §  23.  115 

contracted  the  debt,  A.  B.,  builder  and  owner)  and  E.  F., 
mortgagee  (if  there  be  a  mortgage  or  mortgages),  to  appear 
before  the  Circuit  Conrt  (or  District  Court  of  the  city  of 

,  or' of  the  district  ,  as  the  case  may  be),  in  and 

for    the    county    of    ,    at    ,    in    the    said    county, 

on  the day  of ,  that  the  said  A.  B.)   (the  builder) 

may  answer  unto  G.  H.  (the  claimant)  of  a  plea  (as  in  an 
action  upon  contract)  for  Avhich  G.  H.  claims  a  building  lien 
on  certain  buildings  and  land  of  said  C.  U.  (describing 
the  building  and  lands  as  in  the  claim  on  file),  and  upon 
which  said  E.  F.  holds  a  mortgage  of  record. 

And  the  said  summons  shall  bo  directed,  tested  and  made 
returnable,  and  may  be  served  and  returned  in  the  same 
manner  as  other  writs  of  summons  in  the  court  from  which 
issued,  and  such  summons  may  be  served  upon  the  defendant, 
or  either  of  them,  in  any  county  of  this  State  by  the  sheriff 
thereof,  if  brouglit  in  the  Circuit  Court,  or  by  a  constable  or 
sergeant-at-arms,  if  the  suit  is  brought  in  any  District  Court 
of  any  county ;  and  for  this  purpose  the  same,  or  a  duplicate 
thereof,  may  be  issued  to  such  sheriff,  or  constable,  or  ser- 
geant-at-arms, as  the  case  may  be,  and  if  the  defendant  can- 
not be  found  in  this  State,  it  may  be  served  upon  him  by 
affixing  a  copy  thereof  upon  such  buildings,  and  also  by  serv- 
ing a  copy  on  such  defendant  })ersonally,  or  by  leaving  at 
his  residence  ten  days  before  its  return,  which  shall  be 
deemed  actual  service,  or  in  case  such  defendant  resides  out 
of  this  State,  by  affixing  a  copy  on  such  building  and  sending 
a  copy  by  mail,  directed  to  him  at  the  post  office  nearest  his 
residence,  or  in  case  his  residence  is  not  known  to  the  ]>lain- 
tiff,  then  by  affixing  a  copy  to  such  building  and  by  inserting 
it  for  four  (4)  weeks,  once  in  each  week,  in  some  newspaper 
of  this  State  published  or  circulating  in  the  county  where 
such  building  is  situated,  either  of  which  shall  l>e  legal  ser- 
vice ;  and  when  an  affidavit  shall  be  made  and  filled  of  the  facts 
authorizing  and  constituting  any  such  service  not  made  by  a 
sheriff  or  officer,  the  suit  may  proceed  against  the  party  so 
served  as  if  such  summons  had  been  returned  served  by  the 
sheriff  or  other  officer. 

By  the  further  act  of  1910,  p.  225,  approved  April  18th,  it 
was  enacted  as  follows : 

A  supplement  to  an  act  entitled  "An  act  to  secure  to  mechanics 


116  Mechanics  Lien  Law. 

and  others  payment  for  their  labor  and  materials  in  erecting  any 
building"    (Revision   of   1898). 

BE  IT  ENACTED  by  the  Senate  and  General  Assembly  of  the 
State  of  New  Jersey: 

1.  Any  final  judgment  of  any  District  Court  under  the  pro- 
vision of  the  act  to'  which  this  is  a  supplement  shall  be  docketed 
in  the  Circuit  Court  of  that  county  by  the  party  recovering  the 
same  or  by  his  executors,  administrators  or  assigns  in  the  man- 
ner hereinafter  directed. 

2.  The  clerk  of  every  Circuit  Court  shall  provide  and  keep  a 
docket,  in  which  shall  be  entered,  upon  complying  with  the  pro- 
visions of  this  act,  all  such  final  judgments  from  any  District 
Court. 

3.  When  a  judgment  is  obtained  in  any  District  Court  under 
the  provisions  of  the  act  to  which  this  act  is  a  supplement,  in- 
cluding costs,  the  clerk  of  such  Circuit  Court  of  the  county,  upon 
filing  in  his  office  a  statement  signed  by  the  clerk  of  the  District 
Court,  under  the  seal  of  the  court,  which  statement  shall  con- 
tain the  name  of  the  court,  the  name  of  the  parties,  and  whether 
judgment  be  general  against  the  builder  or  against  the  building 
and  land  only,  or  both,  the  amount  and  date  of  judgment,  and  also 
an  oath  or  affirmation  of  the  party,  his  or  their  attorney  or  agent, 
that  at  the  time  of  filing  such  statement  a  certain  amount  is  still 
due  thereon,  stating  the  amount,  shall  enter  in  a  docket  provided 
for  that  purpose  a  transcript  of  such  judgment  in  words  at  length 
containing  the  name  of  the  District  Court  in  which  the  judgment 
was  obtained,  the  names  at  length  of  the  parties  to  said  judgment, 
the  style  of  the  action,  the  date  of  the  judgment,  the  amount 
recovered  with  costs,  the  substance  of  the  return  of  the  constables 
or  sergeant-at-arms,  and  the  amount  stated  to  be  due  in  the  affi- 
davit. The  fees  of  the  clerk  of  the  Circuit  Court  for  filing  such 
statement  shall  be  two  dollars,  and  to  the  clerk  of  the  District 
Court  for  certifying  the  same,  fifty  cents. 

4.  Such  judgment  shall,  from  the  time  of  such  docketing  in 
the  Circuit  Court,  operate  as  a  judgment  obtained  in  a  suit  or- 
iginally commenced  in  said  court,  and  satisfaction  thereof  may 
be  entered  in  the  same  manner  and  upon  the  same  evidence  as 
is  now  provided  by  law  in  case  of  judgments  rendered  in  the 
Circuit  Court  under  this  act,  and  execution  may  issue  thereon 
out  of  the  Circuit  Court  which  shall  be  of  the  same  effect  as  to 
the  property  of  the  judgment  debtor,  either  personal  or  real,  as 
as  if  issued  on  a  judgment  originally  obtained  in  such  Circuit 
Court  upon  a  suit  commenced  therein. 

5.  After  any  final  judgment  of  any  District  Court  under  the 
provisions  of  the  act  to  which  this  act  is  a  supplement,  no  exe- 
cution shall  issue  thereon  out  of  any  District  Court,  nor  shall 
any  proceedings  be  had  thereon  except  the  due  and  proper  grant- 
ing: of  a  new  trial,  an  appeal  or  certiorari,  no  judgment  shall  be 
allowed  to  be  docketed  after  the  granting  of  a  new  trial,  an 
api)eal  or  certiorari  and  pending  the  determination  thereof. 

6.  Every  judgment  docketed  as  herein  directed  may  be  revived 


Revision  of  1898,  §  23.  117 

by  scire  facias  in  the  Circuit  Court  in  the  same  mamier,  in 
like  eases  and  with  the  like  effect  as  if  said  judgment  had  been 
obtained  in  a  suit  commenced  in  that  court. 

7.  The  clerk  of  the  Circuit  Court  shall  make  a  complete  alpha- 
betical index  to  the  docket  in  which  said  judgments  are  to  be 
entered,  and  said  docket  shall  be  a  public  record,  to  which  all 
persons  desiring  to  examine  the  same  shall  have  access. 

8.  If  any  judgment  recovered  in  any  District  Court  shall  be 
removed  by  appeal  or  certiorari,  and  the  necessary  bond  be  per- 
fected, and  such  judgment  shall,  either  before  or  after  such  re- 
moval, be  docketed  as  herein  provided,  execution  from  the  Circuit 
Court  in  which  said  judgment  is  docketed  shall  be  stayed  and 
suspended  until  the  final  determination  of  such  appeal  or  cer- 
tiorari. 

9.  If  any  judgment,  docketed  as  hereinbefore  provided,  shall 
be  reviewed  upon  certiorari  or  appeal,  and  a  duly  certified  tran- 
script of  the  judgment  of  the  court  wherein  such  appeal  or  cer- 
tiorari may  have  been  determined  shall  be  delivered  to  the  clerk 
of  the  Circuit  Court  of  the  county  where  such  judgment  is  dock- 
eted, it  shall  be  the  duty  of  the  said  clerk  to  file  the  same  in 
his  office,  and  enter  in  the  margin  of  the  docket  opposite  the  entry 
of  said  judg-ment,  in  short  form,  the  substance  of  such  detemiina- 
tion  upon  the  appeal  or  certiorari. 

10.  All  acts  and  parts  of  acts  inconsistent  herewith  are  hereby 
repealed,  and  this  act  shall  take  effect  immediately. 

The  following  notes  were  prepared  before  these  new  enactments 
were  adopted : 

1.  THE  CLAIMANT'S  DEBT  MUST  BE  DUE,  before  his 
suit  is  begun.    See  §  1,  note  3 ;  §  16,  note  1. 

In  a  suit  to  enforce  a  lien  claim,  as  in  any  other,  the  plain- 
tiff's right  of  action  must  be  complete  before  he  begins.  Titus 
V.  Gunn,  40  Vroom  410.  See  the  notes  to  form  of  Building  Agree- 
ment, post,  as  to  when  such  right  is  complete. 

''There  is  nothing  occult  or  mysterious  about  an  action  upon 
a  mechanic's  lien  claim,  so  far  as  the  builder  is  concerned,  it 
is  an  ordinary  action  in  personam.  Combined  with  it,  however,  is 
aji  action,  qiuisi  in  rem,  to  establish  and  enforce  a  lien  upon  cer- 
tain defined  interests  in  the  building  and  land  in  question." 
Vreeland  Co.  v.  Enickerhocher  Co.,  68  Atl.  215. 

As  to  the  necessity  of  prosecuting  suit  with  DILIGENCE,  see 
§  18  and  notes. 

JURISDICTION  of  the  Circuit  Court,  is  exclusive  in  me- 
chanic's lien  cases,  and  the  act  of  1892,  p.  224,  authorizing  the 
transfer  of  causes  from  the  Circuit  Court  to  the  Common  Pleas 
and  the  trial  thereof  by  the  latter  as  if  the  same  had  originally 
been  brought  in  the  latter  court,  gives  the  Common  Pleas  no 
jurisdiction  in  a  lien  case.  Coles  v.  First  Baptist  Church,  30 
Vroom   311. 

2.  WHO  IS  OWNER.  The  person  made  defendant,  as  owner, 
must  have  a  legal  estate  in  the  lands,  either  in  fee,  for  life,  or 


118  Mechanics  Lien  Law. 

^  term  for  years,  Ayers  v.  Revere,  1  Dutch.  474;  Coddington  v. 
Beehe,  2  Vroom  477;  Corcoran  v.  Jones,  12  N.  J.  L.  J.  38;  Tom- 
kins  V.  Horton,  10  C.  E.  Gr.  284;  and  the  lands  cannot  be  made 
to  answer  unless  the  owner  of  such  an  estate  in  them  is  made 
a  defendant  as  owner.  Macintosh  v.  Thurston,  10  C.  E.  Gr.  242; 
and  see  cases  last  cited.     See  also  under  §  1,  note  5;    §  16,  note  4. 

CHANGE  OF  TITLE.  The  owner  at  the  time  the  lien  claim 
is  filed  is  the  projier  person  to  be  made  party  defendant  as  owner, 
even  although  the  property  has  been  conveyed  to  him  since  the 
work  was  begun,  Edivards  v.  Derrichson,  4  Dutch.  39;  5  Dutch. 
4G8;  Robins  v.  Bwnn,  5  Vroom,  322;  Slingerland  v.  Lindsley,  1 
N.  J.  L.  J,  115;  Erdman  v.  Moore,  29  Vroom  445;  TompJcins  v. 
Horton,  10  C.  E.  Gr.  284;  and  the  after  proceedings  must  be 
continued  in  the  same  name  notwithstanding  any  change  in  the 
title  after  the  lien  claim  is  filed.  Purchasers,  after  the  lien  claim 
is  filed,  are  purchasers  pendente  lite,  and  take  title  subject  to  the 
issue  of  the  pending  suit.  If  a  party  acquiring:  a  right  after  lien 
tiled,  desires  to  contest  the  lien,  he  must  apply  for  leave  to  defend 
by  appropriate  plea  in  the  name  of  the  owner  when  the  lien  was 
filed.  Edwards  v.  Derrickson,  4  Dutch.  39;  Ennis  v.  Eden,  etc., 
Co.,  48  Atl.  E.  610. 

A  conveyance  of  the  land  by  the  owner  to  another  as  collateral 
security,  for  the  payment  of  a  debt  does  not  constitute  a  change 
in  the  ownership  of  the  lands.     Gordon  v.  Torrey,  2  McCarter,  112. 

A  VARIANCE  as  to  the  name  of  the  parties,  as  between  the 
lien  claim  and  the  summons  was  formerly  a  serious  matter,  Cor- 
nell V.  Matthews.  3  Dutch.  522;  Vreeland  v.  BoyU,  8  Vroom  346; 
and  in  spite  of  the  power  of  amendment  given  in  §§  19  and  25, 
it  may  be  so  yet.     See  §  16,  note  8;   §  19,  note  1;   and  §  25. 

EQUITABLE  ESTATES,  as  to  these,  see  §  1,  note  5. 

TEKMS  FOR  YEARS,  see  Corcoran  v.  Jones,  12  N.  J.  L.  J. 
^8;    and  supra,  §  16,  note  4;    §  7,  and  notes. 

ESTATE  BY  ENTIRETY.  If  the  attack  is  against  only  the 
estate  of  the  husband,  the  lien  claim  should  name  both  as  owners, 
but  the  suit  should  be  against  the  husband  only,  as  owner.  Wcish- 
hvrn  x\  Burns.  5  Vroom  18.  On  a  suit  now,  to  enforce  a  lien 
for  a  building  erected  on  lands  held  by  such  a  title,  where  the 
husband  contracts  for  the  erection  in  his  own  name  only,  the  entire 
fee  is,  perhaps,  liable  to  the  lien.  See  §  2,  note  1,  and  §  13,  note; 
if  the  contract  is  made  by  the  woman  only,  only  her  estate  would 
be  liable.     See  §  7. 

In  an  APPORTIONMENT  case  there  must  be  but  one  suit. 
Culver  V.  Lieberman.  40  Vroom  341.  See  §§  22  and  16,  and  notes 
to  §  22. 

3.  MORTGAGE  DEFENDANTS.  Prior  to  the  enactment  of 
the  provision  for  making  a  mortgagee  a  party  defendant,  by  the  act 
of  1884,  a  mortgagee  could  not  be  made  a  party  to  the  proceed- 
ings, Tompkins  v.  Horton,  10  C.  E.  Gr.  284;  Central  Trust  Co. 
V.  Bartlett,  28  Vroom  206 ;  and  only  mortgagees,  whose  mortgagee 
have  been  recorded  since  the  lien  attached  (the  commencement  of 
the   building),  can  be  made  parties  to  the  suit  mider  that  act. 


Revision  of  1898,  §  23.  119 


Central  Trust  Co.  v.  Bartlett,  supra.  The  effect  of  omitting  to 
make  such  mortgagees  defendants  is,  of  course,  that  the  ensuing 
judgment  will  not  be  conclusive  as  to  them.  Cox  v.  Flanagan,  2 
Atl.  33. 

As  to  when  the  lien  attaches,  see  §§  14,  15  and  28. 

A  person  who  has  a  deed  absolute  on  its  face,  but  intended  as 
a  mortgage  is,  in  equity,  a  mortgagee,  Gordon  v.  Toii-eij,  2  McCart. 
112;  and  if  the  facts  are  known  to  the  claimant,  should,  perhaps, 
be  made  a  party  in  the  lien  suit,  as  such. 

Mortgagees  who  acquire  their  interests  after  the  lien  claim  is 
filed,  and  before  suit  is  begun,  ought  also,  perhaps,  to  be  made 
parties.  It  may  be  that  they  would  be  cut  off,  as  purchasers  pen- 
dente lite,  without  being  so  brought  in,  Ennis  v.  Eden,  etc.,  Co., 
47  Atl.  R.  610;  but  the  words  of  the  statute  are  broad  enough 
to  include  them,  and  Ennis  v.  Eden,  etc.,  Co.,  in  its  circumstances, 
covered  only  the  case  of  purchasers,  not  mortgagees. 

4.  The  summons  need  not  actually  be  sealed  and  attested  by 
the  clerk,  the  attorney  may  do  both  these  things,  James  v.  Van 
Horn,  10  Vroom  353 ;  but  the  attorney  must  see  that  the  time  of 
issuing  the  summons  is  endorsed  by  the  clerk  upon  the  lien  claim 
within  four  months  from  the  issuance  thereof,  or,  in  case  there 
has  been  a  notice  to  sue  given  by  the  owner  to  the  claimant,  then 
within  thirty  days  after  receipt  of  such  notice.  See  §  18,  note 
2;    and  also  Cwner  v.  Cummings,  13  Stew.  145. 

5.  SERVICE  OF  PROCESS.  The  statute  contemplates  three 
modes  of  service:  (a)  ordinary  due  service  upon  the  defendant 
in  person,  or  at  his  place  of  abode  within  the  State;  (b)  actual 
sei-vice  outside  of  the  State  either  upon  the  defendant  in  person 
or  at  his  place  of  abode;  (c)  constructive,  or  legal,  service  out- 
side of  the  State  by  mailing  and  publication.  In  the  last  two 
modes,  a  copy  of  the  summons  is  to  be  affixed  also  to  the  building. 
Since  the  fourteenth  amendment  of  the  Constitution  of  the  United 
States,  as  construed  in  Pennoyer  v.  Neff.  95  U.  S.  714,  no  valid 
judgment  in  personam  can  be  entered  against  a  defendant  served 
only  in  the  second  and  third  modes ;  although,  before  that  amend- 
ment, such  judgment  would  have  been  held  good  within  the 
State,  as  the  legislature,  on  the  passage  of  the  original  of  this 
section  in  1853,  intended  should  be  the  case. 

But  such  judg-ment  in  personam  may  be  entered,  and  will  be 
valid,  against  a  defendant  builder,  who,  although  not  served  duly 
within  the  State,  voluntarily  appears  and,  by  pleading  the  general 
issue,  submits  himself  to  the  jurisdiction  of  the  court,  in  the  suit 
to  enforce  a  lien  claim.  Smith  v.  CoUotij.  40  Vroom  365  (E.  & 
A.)  ;  Culver  v.  Lieherman,  40  Vroom  341. 

DEFECTIVE  SERVICE,  may  be  cured  by  taking  an  order  for 
a  new  summons  and  making  a  good  service  thereof.  Mutual  Ben- 
efit, etc.,  Co.  V.  Eoxvand,  11  C.  E.  Gr.  389.  In  the  case  last  cited, 
it  was  held,  that  such  a  new  sununons  would  be  valid  and  effec- 
tual to  preserve  the  lien,  even  if  issued  later  than  the  statutory 
period  for  beginning  suit  (then  one  year,  now  four  months,  after 


120  Mechanics  Lien  Law. 

the  last  item  of  the  claim) ;  and  it  could,  probably,  be  taken  now 
at  any  time  before  the  plaintiff  would  be  precluded  for  laches  in 
prosecuting  his  suit.  See  §  18,  note  3.  See  also  under  §  24, 
note  6. 

FOEM  OF  EETUEX.  If  the  summons  bears  the  return,  that 
it  was  duly  served  on  the  defendants,  builder  and  owner,  but  the 
manner  of  service  does  not  appear,  it  is  a  good  return,  as  against 
the  owner  (and  undoubtedly  as  against  mortgagees  also)  ;  since 
the  builder  is  the  only  party  defendant  who  can  be  affected  by 
the  manner  of  service.  James  v.  Van  Horn,  10  Vroom  353. 

If  the  return  of  SEEVICE  OX  A  COEPOEATION,  defend- 
ant as  both  builder  and  owner,  show  that  it  was  served  on  the 
secretary  without  showing  that  the  president,  or  other  head  offi- 
cer, could  not  be  found;  it  is  not  a  good  return;  but,  after 
judg-ment  by  default,  and  motion  to  open  default  denied,  it  can- 
not be  objected  to  for  the  first  time,  on  writ  of  error ;  for  it  is  to 
be  presumed  that  the  defect  might  have  been  cured  by  proof,  if  the 
objection  had  been  made  at  the  Circuit.  Ennis  v.  Eden,  etc.,  Co., 
48  Atl.  E.  610. 

Declaration,  Form ;  recitals ;  averment  that  debt  is  a 
lien,  etc. ;  schedules.  Practice,  pleadings ;  defenses.  Effect 
of  special  plea  that  building  and  lands  are  not  liable. 
Priorities;  verdict;  judgment — general  or  special  or  both. 
Effect  of  special  judgment.  Surplus  proceeds  on  sale  on 
execution. 

24.  The  declaration  in  sncli  case  shall,  after  reciting  that 
the  owner  and  builder  {and  other  defen<h)its)  were  sum- 
moned, and  how  served,  [and  why  such  other  defendants  were 
made  defendants) ,^  be  against  the  builder,  and  in  the  same 
form  as  in  other  actions  upon  contract,  and  shall  conclude 
with  an  averment  that  said  debt  is,  by  virtue  of  the  provi- 
sions of  this  act,  a  lien  upon  such  building  and  lot,  describ- 
ing the  same  as  in  said  claim  ;^  and  to  said  declaration  a 
schedule  may  be  annexed,  and  the  practice,  proceedings  and 
pleadings  thereon  shall  be  conducted,  and  the  judg-ment 
entered,  as  in  suits  in  said  circuit  court,  to  recover  money 
due  on  contract;^  and  all  or  any  of  said  defendants  may, 
jointly  or  severally,  have  any  defence  or  plea  to  the  same 
that  might  be  had  by  the  builder  to  any  action  on  said  con- 
tract without  this  act;  and  in  addition  thereto,  the  owner 
(or  mortgagee)  may  plead  that  said  building  or  land  are  not 
liable  to  said  debt,^  and  in  such  case  it  shall  be  necessary  for 
the  plaintiff,  to  entitle  him  to  judgment  against  the  build- 
ing and  lands,  to  prove  that  the  provisions  of  this  act,  re<jui- 


Revision  of  1898,  §  .24.  121 

site  to  constitute  sucli  lien,  have  been  complied  with ;  (and 
any  defendant  mortgagee^  may  have  a  further  plea  that  said 
lien  claim  is  subject  to*  such  mortgagee's  lien,  and  the  judg- 
ment in  atiy  such  case  shall  determine  the  priority  of  the 
liens  of  the  plaintijf  and  each  of  said  defendants,  and  any 
judgment  or  proceeding  under  the  same  shall  not  affect  the 
lien  of  any  of  said  defendants  wlwse  lien  shall  he  determined 
to  he  paramomit  to  that  of  the  plm7itiff)  f  and  in  case  a 
verdict  be  rendered  or  judgment  be  given  against  the  builder 
only,  judgment  shall  be  given  for  the  landowner,  with  costs 
against  the  plaintiff;  and  in  case  judgment  be  given  for  the 
plaintiff,  it  shall  be  entered  against  the  builder  when  he  was 
actually  served  with  the  summons,  generally,  and  with  costs 
as  in  other  cases ;  and  when  only  legal  service  of  the  summons 
has  been  made,  judgment  against  the  o\viier  and  also  against 
the  builder,  shall  be  specially  for  the  debt  and  costs,  to  be 
made  of  the  building  and  lands  in  the  declaration  described ; 
and  in  case  no  general  judgment  is  given  against  the  builder, 
such  proceedings  or  recovery  shall  be  no  bar  to  any  suit  for 
the  debt,  except  for  the  part  thereof  actually  made  under 
such  recovery;*^  (and  if  the  proceeds  of  the  sale  of  the  huild- 
ings  or  lands  under  any  such  judgment  shall  be  more  than 
sufficient  to*  pay  the  judgment  of  said  plaintiff,  and  any  con- 
current meclianics'  lien  claims  entitled  to  payment  ottt  of  the 
proceeds  of  said  sale  under  the  provisions  of  this  act,  any 
surplus  shall  he  distributed  hy  the  court  out  of  ivhich  the 
execution  issued  tO'  the  said  defendants  holding  liens,  subject 
to  that  of  the  plaintiff,  according  to  the  priority  of  their 
respecti'V&  liens  as  determined  in  said  judgment). 

1898,  p.  §  24;    185S,  p.  Jf37,  §  9;  Rev.  1874,  §  19; 
1884,  p.  260,  §  2. 

The  words  in  parentheses  were  inserted,  because  of  the  act  of 
1884,  in  the  Revision  of  1898.  The  act  of  1884  had  not  formally 
changed  the  reading  of  the  section,  as  enacted  in  1853,  to  that  of 
the  present  draft;  but  its  effect  was  precisely  the  same  as  if  it 
had.  The  original  reading  of  the  section,  as  enacted  in  1853,  with 
some  slight,  and  merely  verbal  changes  made  in  the  Revision  of 
1874,  may  be  seen  by  reading  it,  as  it  now  stands,  without  the 
words  in  parentheses. 

1.  VARIANCE.  There  must  not  be  a  variance  between  the 
claimants  named  in  the  lien  claim  and  those  named  as  plaintiffs  in 
the  suit.     Vreeland  v.  Boyle,  8  Vroom  346. 


122  Mechanics  Lien  Law. 

RECITAL  OF  SERVICE.  The  manner  of  service  of  tlie  sum- 
mons is  material  only  in  determining  whether  there  can  be  a  gen- 
eral judgment,  or  not,  against  the  builder.  The  owner,  therefore, 
cannot,  after  plea,  object  on  such  ground.  If  he  wishes  to  do  so, 
he  must  demur.    Jam^es  v.  Van  Horn,  10  Vroom  353. 

In  a  suit  against  a,  corporation,  as  builder  and  owner,  ending 
in  a  judgment,  general  as  well  as  special;  it  cannot  be  objected 
for  the  first  time  on  error,  that  the  declaration  did  not  show  how 
the  defendant  was  served.  Eiinu  v.  Eden,  48  Atl.  R.  610.  So  if 
the  declaration  recite  that  the  defendant  builder  was  actually 
served  with  process,  and  no  evidence  to  the  contrary  is  offered,  the 
fact,  that  the  defendant  builder  is  shown  to  be  a  resident  of  an- 
other State,  does  not  entitle  him  to  object  to  the  entiy  of  a  general 
judg-ment  against  him.     Culver  v.  Liehei'man,  40  Vroom  341. 

2.  OWNER'S  ESTATE.  The  declaration  need  not  state  what 
the  owner's  estate  in  the  land  is,  it  is  only  necessary  to  name  the 
owner  as  such,  and  to  aver  that  the  debt  is  a  lien  on  the  building 
and  lot  described  in  the  declaration  as  in  the  lien  claim,  Cornell 
V.  Matthews,  3  Dutch.  .522;  but  if  it  affinnatively  appears,  on  the 
face  of  the  declaration  and  lien  claim,  that  the  person,  sued  as 
owner,  has  no  estate  at  all  in  the  lands,  the  suit  cannot  be  main- 
tained, Bahhitt  v.  Condon.  3  Dutch.  154. 

PRODUCTION  OF  SUIT.  The  declaration  need  not  conclude, 
"and  therefore  he  brings  his  suit;"  the  averment,  that  the  claim 
is  a  lien  upon  the  building  and  lot,  etc.,  is  the  conclusion  of  the 
declaration.     Cornell  v.  Matthexvs,  3  Dutch.  522. 

USE  OF  MATERIALS.  It  is  not  necessary  that  the  declara- 
tion should  aver  that  the  materials  for  which  the  debt  was  in- 
curred were  actually  used  in  the  building,  inasmuch  as  it  is  only 
necessary  to  prove  that  they  were  ordered  and  furnished  for  that 
puri>ose.  Morris  Co.  Bank  v.  Rockawai/.  etc..  Co..  1  McCart.  189; 
Camphell  v.  Taylor,  etc..  Co..  51  Atl.  R.  723. 

APPORTIONMENT  OF  LIEN.  See,  as  to  the  proper  method 
of  framing  the  declaration,  in  case  the  claim  is  to  be  apportioned 
between  several  buildings,  Culver  v.  Liehernmn.  40  Vroom  341. 
See  also,  under  §  22,  note  1.  The  declaration,  as  well  as  the  lien 
claim,  must  apportion  the  claim  and  describe  the  several  buildings 
and   curtilages. 

CONDITIONS  PRECEDENT.  The  plaintiff  will  find  it  wise 
to  aver  the  performance  of  all  conditions  precedent.  See  Stewart 
Contracting  Co.  v.  Trenton  Co..  42  Vroom  568;  Dimick  v.  Metro- 
politan Ins.  Co..  38  Vroom  367. 

3.  FILING  DECLARATION.  In  Craig  v.  Smith,  3  N.  J.  L.  J. 
380,  (Oct.  15,  1880)  it  was  held,  at  Circuit,  that  if  the  declaration 
in  a  lien  suit  be  lodged  with. the  clerk  to  be  filed,  and  is  by  the 
latter  marked  as  filed,  prior  to  the  return  day  of  the  summons, 
it  is  an  irregularity  which  will  rendw  viodable,  a  judgment  by 
default,  entered  more  than  sixty  days  after  such  return  day.  This 
ruling  was  made  on  the  asserted  authority  of  Brown  v.  Daws.  3 
Zab.  483;    but  that  case,  when  examined,  does  not  seem  to  sup- 


Eevision  of  1898,  §  24.  123 

port  it;  for  the  most  that  it  decided  was,  that,  under  the  practice 
as  then  (1852)  established  by  law,  a  defendant's  time  to  plead  could 
not  be  shortened  by  a  notice  that  the  plaintiff  had  filed  his  declara- 
tion, when  such  notice  was  served  before  the  plaintiff  legally  could 
have  filed  his  declaration.  See  the  act  of  1852,  p.  218,  §  1 ;  and 
see  also,  3  N.  J.  L.  J.  355,  editorial  comment  on  Craig  v.  Smith. 

By  the  act  of  1884,  p.  267,  now  Gen.  Sts.,  p.  2587,  §  320,  a  plain- 
tiff is  authorized  to  file  his  declaration  at  any  time  after  the  is- 
sue of  the  summons,  and  to  then  serve  it  on  the  defendant,  or  to 
annex  it  to,  and  have  it  served  with,  the  summons,  before  it  is 
filed;  but  there  is  some  doubt  whether  this  statute  applies  to  the 
case  of  a  suit  to  enforce  a  lien,  since  it  is  required  that  the  dec- 
laration in  such  a  suit  shall  recite  that  the  defendants  have  been 
summoned  and  how  they  have  been  served,  and  it  would  seem  that 
this  could  only  be  done  after  the  return  day  of  the  summons  had 
been  reached.    See  suggestion  of  Justice  Depue,  13  N.  J.  L.  J.  30. 

SERVICE  OF  DECLARATION.  There  seems  to  be,  there- 
fore, a  doubt  that  the  declaration  in  a  lien  suit  can  be  served  be- 
fore the  return  day  of  the  siunmons;  But  no  reason  appears  for 
supposing  that  it  may  not  be  served  after  that  time,  as  declara-, 
tions  in  other  suits  may  be. 

SCHEDULE.  In  a  case  where  neither  the  lien  claim  nor  dec- 
laration showed  that  the  debt  was  incurred  for  work  done  by  con- 
tract, but,  on  the  contrary,  showed  a  number  of  apparently  sepa- 
rate items  with  the  date  and  amount  of  each,  it  was  held,  in  a  col- 
lateral foreclosure  suit,  that  it  could  not  be  shown  by  extrinsic 
evidence  that  the  debt,  in  fact,  was  for  contract  work,  and  that, 
therefore,  under  the  law  as  it  then  stood  (1875),  the  judgment,  as 
a  special  lien,  was  good  only  to  the  extent  of  the  items  which, 
on  the  face  of  the  record,  appeared  to  have  been  furnished  within 
the  year  before  the  lien  claim  was  filed.  Raymond  v.  Post.  10  C. 
E.  Gr.  447. 

LIEN  CLAIM  AS  EVIDENCE.  It  is  not  error  to  allow  the 
lien  claim  to  go  to  the  jury  when  it  is  shown  to  a  witness  who  tes- 
tifies that  the  bill  of  particulars  therein  contained  is  a  correct  state- 
ment of  the  goods  which  he,  the  witness,  ordered  for  the  building. 
Mooney  v.  Peck,  20  Vroom  232. 

REFERENCE.  The  language  of  the  section  makes  §  155  of 
the  Practice  Act  applicable  to  lien  suits.  There  must  be  mat- 
ters of  account,  however,  in  controversy,  to  justify  a  reference. 
New  Yorh  Co.  v.  Kiernan,  44  Vroom  763  (E.  &  A.). 

See  also  the  act  of  1905,  p.  374,  §§1  and  2.  printed  below  as 
§§  24a  and  24b. 

4.  PLEA  IN  ABATEMENT.  One  who  is  sued  as  owner,  but 
who,  in  fact,  is  not,  has  the  right  to  raise  the  question  by  plea 
in  abatement.  Faith  v.  McNair,  13  N.  J.  L.  J.  44;  see  also  Tom- 
linson  v.  DeGraw,  2  Dutch.  73. 

DEMURRER.  If  it  appear  on  the  face  of  the  declaration  and 
lien  claim  that  tlie  debt  is  not  a  lien  on  the  property  therein 
described,  the  owner  may  demur.     Coddington  v.  Beebe,  5  Dutch. 


124  Mechanics  Lien  Law. 

550;    Coddington  v.  Hudson,  etc.,  Co.,  2  Vroom  477;   and  see  note 
2,  supra. 

PLEAS  IN  BAR.  The  builder  can  plead  only  such  pleas  as 
he  might  in  an  action  against  him  on  contract.  TomUmon  v.  De- 
Grow,  2  Dutch.  73. 

SET  OFF.  The  builder  cannot  set  off  claims,  due  to  him  from 
the  plaintiff,  which  have  accrued  to  him  in  transactions  other  than 
that  on  which  his  lien  claim  is  based.  Naylor  v.  Smith,  34  Vroom 
596.  See,  however,  the  very  able  dissenting  opinion  in  this  case, 
reported  in  35  Vroom  358,  delivered  by  Justice  Collins,  and  con- 
curred in  by  Justices  Lippincott  and  Dixon.  It  seeons  unfortu- 
nate that  the  views  there  expressed  were  not  adopted  by  the  ma- 
jority of  the  Court  of  Errors  and  Appeals. 

x\ON-PERFORMANCE  OF  CONDITIONS  PRECEDENT. 
If  the  plaintiff  has  averred  generally,  as  he  may  do,  the  perfomi- 
ance  of  such  conditions,  the  defendant  must  take  care  to  plead 
the  non-performance  of  any  such  condition  specially;  if  he 
means  to  rely  thereupon,  as,  for  example,  the  condition  requiring 
the  production  of  an  architect's  certificate.  If  the  defendant  fails 
so  to  plead,  he  will  be  precluded  from  such  defense.  Stewart  Co. 
V.  Trenton  Co.,  42  Vroom  568;  Ottowa  Tribe  v.  Munter,  31  Vroom 
459. 

PLEA  THAT  THE  LAND  IS  NOT  LIABLE.  This  plea  does 
not  raise  the  issue  of  the  title  to  the  property,  nor  compel  the  plain- 
tiff' to  prove  the  ownership,  or  estate,  of  the  defendant  therein. 
That  question  may  be  raised  by  a  plea  in  abatement,  as  just 
noticed;  but  under  this  plea  it  is  immaterial  what  interest  the  de- 
fendant has,  or  whether  he  had  any.  Cornell  v.  Matthews,  3 
Dutch.  522;  Waslihurn  v.  Burns,  5  Vroom  18.  If  the  owner  wishes 
to  contest  the  validity  of  the  lien  he  must  do  so  by  this  plea, 
and  the  only  issue  raised  by  it  is,  the  validity  of  the  lien,  as 
against  the  land,  on  the  assumption  that  he  is  the  owner  of  it. 
Tomlinson  v.  DeGraw,  2  Duteh.  73;  and  see  the  cases  also  just 
cited.  The  plea  imposes  upon  the  claimant  the  burden  of  es- 
tablishing, as  against  the  owner  or  mortgagee,  that  the  pro- 
visions of  the  act,  requisite  to  constitute  the  lien,  have  been  com- 
plied with.  Vreeland  Co.  v.  Enickerhocher  Co.,  68  Atl.  215.  Prior 
to  the  act  of  1884,  no  one  but  the  owner  could  plead  this  plea,  as 
he  was  the  only  one  concerned  in  contesting  the  validity  of  the 
lien.  Tomlinson  v.  DeGraw.  supra;  Cornell  v.  Matthews,  supra; 
but  now  mortgagees  also  may  plead  it.  An  owner  who  is  sum- 
moned only  as  builder,  but  declared  against  as  owner,  waives  the 
irregularity  of  the  summons,  by  pleading  this  plea.  Cornell  v. 
Matthews,  supra. 

PLEA  THAT  MATERIALS  WERE  NOT  USED.  There  can 
be  no  such  plea.  If  it  were  competent  to  show  this  in  defense 
it  would  be  i)ermissible  only  under  the  plea  just  above  mentioned, 
but  it  is  no  defense,  even  if  true,  unless.  i)erhaps,  in  case  of  fraud. 
Bell  V.  Mecmn,  68  Atl.  149.    See  note  2,  supra.  Use  of  Materials. 

VARIANCE.  If  the  lien  claim  is  for  repairs  and  theyproof 
is  the  erection  of  a  new  building,  there  is  a  fatal  variance.  Cox 
V.  Flanagan,  2  Atl.  33  (Bird,  V.  C). 


Revision  of  1898,  §  24.  125 

OTHER  DEFENSES.  When  the  builder  is  also  vice  presi- 
dent of  a  corporation  that  is  supplying  him  with  materials, 
the  owner  who  settles  with  him,  without  assuming-  to  discharge 
such  builder's  debt  to  said  company,  and  with  neither  his  nor  its 
consent  for  such  a  transaction,  cannot  afterwards  claim  that  the 
company's  right  of  lien  has  been  thereby  discharged.  Kaiqhn  v. 
Friday,  73  Atl.  540. 

A  stipulation  that  there  shall  be  no  defense  but  payment  will 
preclude  any  other  defenses.    Kaighn  v.  Friday,  supra. 

The  owner  cannot  plead  that  the  plaintiff  has  previously  made 
an  unsuccessful  attempt  to  establish  the  same  claim  against  the 
supposed  interest  of  another  person  in  the  same  land.  If  true,  that 
would  be  no  bar;  and  the  act  gives  the  owner  the  right  to  plead 
only  that  the  lands  are  not  liable  and  such  other  pleas  as  the 
builder  can  plead.    Vreeland  Co.  v.  Knickerhocker  Co.,  68  Atl.  215. 

INTERLOCUTORY  ORDERS,  made  in  the  course  of  a  lien 
suit  are  not  reviewable  by  certiorari.  The  proceedings  in  such 
suit  are  according  to  the  course  of  the  common  law,  and  are  re- 
viewable only  by  writ  of  error  after  final  judgTuent.  Five  Mile 
Beach  Co.  v.  Friday,  66  Atl.  901. 

5.  CONCLUSIVENESS  OF  JUDGMENT.  A  judgment  on  a 
lien  claim  has  the  same  quality  of  conclusiveness  that  an  ordin- 
ary common  law  judgment  has,  when  put  in  issue  in  a  collateral 
proceeding.  It  may  be  avoided  for  fraud  but  cannot  be  set  aside 
for  imperfections  in  the  lien  claim  or  irregularities  in  the  pros- 
ecution of  the  suit.  Jacohus  v.  Mut.  Ben.  Ins.  Coo.,  12  C.  E.  Gr. 
604;  s.  c,  11  C,  E.  Gr.  389,  sub  nom.  Mutual,  etc.,  Co.  v.  Row- 
and. 

Two  questions  may  be  raised,  respecting  the  record  of  such 
judgment,  in  a  collateral  proceeding.  One  respects  the  jurisdic- 
tion of  the  court  upon  the  subject  matter  adjudicated  upon.  The 
other  relates  to  the  existence  of  the  adjudication.  The  latter 
question  can  be  tried  only  by  the  record,  which  imports  absolute 
verity,  and  against  which  no  averment,  or  proof  to  the  con- 
trary, can  be  received.  Cutter  v.  Kline,  8  Stew.  534;  reversing 
s.  c,  7  Stew.  329. 

Hence,  it  cannot  be  shown  collaterally  that  a  judgment  was 
entered  as  a  general  judgment  instead  of  a  special  judgment,  by 
the  mistake  of  the  clerk  of  the  Circuit  Court,  Cutter  v.  Kline, 
supra;  nor  that  the  curtilage  upon  which  the  lien  is  thereby  im- 
posed is  not  the  proper  curtilage,  Gerard  v.  Birch,  1  Stew  317; 
Jacohus  V.  Mut.  Benefit  Ins.  Co.,  supra;  nor  that  the  items  of 
claim,  which  appear,  by  the  record,  not  to  have  been  furnished 
by  contract  were,  in  fact,  so  furnished.  Raymond  v.  Post,  10  C. 
E.  Gr.  447.     See  Hall  v.  Spaulding,  11  Vr.  166. 

If  the  record  of  such  a  judgment  is  in  fact  not  what  it  should 
have  been,  but  no  defect  of  jurisdiction  appears;  it  must  be 
either  amended  in  the  court  pronouncing  it,  or  reviewed  by  writ 
of  error.  The  Court  of  Chancery  has  no  power  to  determine 
whether  a  claim,  which  purports  to  be  a  lien,  is  a  lien  or  not,  but 
only,  what  is  the  position,  in  relation  to  other  encumbrances,  of 


126  Mechanics  Lien  Law. 

a  claim  which  the  Circuit  Court  has  adjudicated  to  be  a  lien. 
Cutter  V.  Kline,  supra.  But  if  it  appear  that  the  court  was 
without  authority  to  give  the  judgment,  as  where  the  claim  filed 
did  not  comply  with  the  statutoiy  requirements  in  regard  to  ap- 
portioning the  claim  as  between  several  buildings,  and  this  ap- 
peared on  its  face;  the  judgment  may  be  collaterally  avoided. 
Morris  Co.  Ba-nk  v.  Rockaway  Mfg.  Co.,  1  C.  E.  Gr.  150.  So 
where  lands  were  bona  fide  conveyed  to  a  contractor  by  the  owner, 
after  the  building  was  completed  pursuant  to  a  duly  filed  contract ; 
and  the  contractor  thereafter  mortgaged  them,  and  then  a  ma- 
terialman recovered  a  special  judgment  against  such  contractor, 
as  builder  and  owner;  and  the  mortgagee  then  foreclosed,  it  was 
held  that  the  mortgage  was  prior  to  such  judgment,  because  the 
claimant  had  no  right  to  a  Hen.    Scudder  v.  Harden,  4  Stew.  503. 

CONCLUSIVENESS  OF  JUDGMENT  AS  ESTABLISH- 
ING PRIORITIES.  Prior  to  the  act  of  1884,  p.  260,  by  which 
mortgagees  are  required  to  be  made  parties,  judgnient  on  a  lien 
claim,  and  sale  and  conveyance  pursuant  to  special  ti.  fa.  there- 
upon, did  not  preclude  an  encumbrancer  from  contesting  with 
the  purchaser,  collaterally,  the  question,  whose  title  was  para- 
mount, Tompkins  v.  Horton,  10  C.  E.  Gr.  293;  Clark  v.  Butler, 
5  Stew.  664;  and  the  time  of  the  commencement  of  the  building, 
upon  which  the  respective  priorities  of  mortgages  and  lien  claims 
depended,  as  the  statute  did  not  require  it  to  be  specified,  either 
in  the  lien  claim  or  the  record  of  the  judgment,  could  not  be  shown 
by  such  record,  even  if  an  entry  of  it  appeared  therein ;  unless  it 
was  in  some  way  put  in  issue  and  found  by  the  jury.  Gordon 
V.  Torrey.  2  McCart.  112. 

It  may  be  difKcult  to  say  just  what  is  the  effect  of  the  law 
as  it  now  stands,  on  all  the  questions  that  suggest  themselves,  m 
this  connection;  but  it  is  probably  safe  to  assume,  that  while  the 
priorities,  as  established  by  a  judgment  under  the  present  law, 
cannot  be  collaterally  attacked,  as  between  the  part  res  to  the 
suit,  they  may  still  be  subject,  as  formerly,  to  such  attack  on  the 
part  of  others;  and  that,  on  such  attack,  the  time  of  the  cona- 
mencement  of  the  building  may  be  shown,  by  the  record,  if  it 
be  shown  by  it;  or  aliunde  the  record,  if  it  do  not  show  it,  or 
if  it  is  desired  to  contradict  that  date  which  it  does  show. 

6  VERDICT  SPECIAL  FINDINGS.  If  a  lien  claim  is  for 
repairs  as  well  as  for  construction,  the  verdict  should  find  sepa- 
rately the  amount  due  for  each  class  of  claim ;  because  the  prior- 
ity of  the  claim  in  respect  of  a  purchaser  or  mortgagee  is  not  tlie 
same  in  the  one  instance  as  in  the  other.  James  v.  Yam  H&rn, 
10  Vroom  353.  As  we  have  seen  above,  under  §  10,  note  3,  claims 
for  alterations  are,  by  the  present  revision,  made  the  same,  in 
this  respect,  as  claims  for  repairs.  If  the  proof  shows  that  items 
for  alterations  and  repairs,  have  been  blended  with  itenis  for  con- 
struction, in  a  lien  claim  which  purports  to  be  for  the  latter  work 
only  care  must  be  taken,  in  moving  for  a  non-suit  or  a  verdict 
on 'that  ground,  to  specify  the  items  that  are  thus  erroneously 
included  and   why   such   inclusion   is  erroneous.     Otherwise  the 


Revision  of  1898,  §  24a.  127 

objection  will  not  be  considered  upon  writ  of  error.  Bell  v.  Me- 
cum,  68  Atl.  149;  citing.  Van  AUtijne  v.  Franklin  Council,  40 
Vroom  672. 

FORM  OF  JUDGMENT.  It  is  of  no  consequence  to  the 
owner  whether  the  summons  has  been  actually  served  on  the 
builder  as  that  is  material  only  as  determining  whether  the  judg- 
ment shall  be  general  against  the  builder.  The  only  judgment 
that  can  be  entered  against  the  owner,  as  such  is  the  special 
judgment.  James  v.  Van  Horn,  10  Vroom  353.  And  it  is  re- 
versible error  for  the  judg-ment,  so  far  as  it  purports  to  be 
special,  to  fail  to  direct  the  recovery  to  be  made  of  the  land,  or 
the  owners  interest  therein,  as  well  as  of  the  building.  There 
cannot  be  judgment  specially  to  be  made  of  the  building  only. 
Bahhitt  v.  Condon,  3  Dutch.  154;  Coddington  v.  Beehe,  2  Vroom 
477 ;  Leaver  v.  Kilmer,  59  Atl.  643  (E.  &  A.) ;  and  so  where  the 
party  defendant  as  owner  is  a  mere  licensee  there  can  be  no  spec- 
ial judg-ment.  Wm.  H.  Atkinson  Co.  v.  Shields  Co.,  72  Atl.  81 
(E.  &  A.). 

The  wording  of  the  statute  is  peculiar,  but  it  does  not  mean 
that  a  special  judgment  can  be  entered  only  where  there  has  been 
legal  and  not  actual  service  of  the  summons;  the  special  judg- 
ment, if  the  lands  are  liable,  may  be  entered  whether  the  sum- 
mons was  served  "actually"  or  "legally,"  Mut.  Benefit,  etc.,  Co. 
V.  Rowand,  11  C.  E.  Gr.  389.  The  language  of  the  statute,  that 
judgment  shall  be  entered  against  the  builder  generally,  "when 
he  was  actually  served  with  the  summons;"  and  that  "when 
only  legal  service  of  the  summons  has  been  made  judgment  against 
the  owner  and  also  the  builder  shall  be  specially,  etc.,"  does  not 
preclude  a  general  judgment  against  the  builder,  although  not 
served  within  the  State,  if  he  has  by  appearance  and  plea  of 
the  general  issue,  submitted  to  the  jurisdiction.  Smith  v.  Colloty, 
40  Vroom  365  (E.  &  A.). 

The  plantiif,  if  entitled  to  enter  a  general  and  special  judg- 
ment, may  waive  either  and  enter  the  other.  Cornell  v.  Matthews, 
3  Dutch.  522. 

Reference.  Matters  of  Account.  Special  Judgment. 
Priorities.    Proceedure. 

24a.  Any  action  brought  bv  virtue  of  the  provisions  of 
the  act  to  which  this  is  a  supplement  and  in  which  matters  of 
account  are  in  controversy  may,  by  rule,  be  referred  to  some 
competent  person  or  persons  to  state  and  report  an  account 
between  the  parties  and  the  amount  that  may  be  d\ie  from 
either  party  to  the  other ;  and  in  case  a  lien  is  claimed  in 
said  action,  then,  whether  the  plaintiff  is  entitled  to  judgment 
specially  against  the  building  and  land  in  the  declaration 
described,  and  in  case  of  defendant  mortgagees,  to  report  the 


128  Mechanics  Lien  Law. 

priority  of  liens  of  the  plaintiff  and  said  mortgagee  defend- 
ants as  put  in  issue  by  the  pleadings  in  such  action. 

24b.  The  practice  and  procedure  respecting  such  referen- 
ces and  upon  and  after  the  coming  in  of  the  report,  and  the 
rights  of  the  parties  with  respect  to  trial  by  jury,  shall  be 
the  same  as  in  other  actions  at  law  in  which  matters  of 
account  are  in  controversy,  and  in  which  references  are 
ordered ;  and  judgment,  if  entered  on  the  report,  shall  be 
given  in  like  manner  as  now  provided  by  the  act  to  which 
this  is  a  supplement. 

The  above,  printed  as  §§  24a  aud  24b,  is  the  act  of  1905,  p. 
374,  §§1  and  2. 

It  will  be  noted  that  it  gives  larger  powers  than  were  a  part  of 
the  ordinary  powers  of  the  court  before  its  enactment.  See  New 
York  Co.  V.  Kiernan,  44  Vroom  763. 

Amendment  of  errors  and  defects  of  proceedingfs  by  Cir- 
cuit Court  or  judge. 

25.  It  shall  be  lawful  for  the  court,  or  any  judge  thereof, 
at  all  times,  to  amend  all  defects  and  errors  in  any  suit  or 
proceeding  under  this  act,  so  that  the  merits  of  the  contro- 
versy between  the  parties  may  be  determined ;  and  that  said 
amendments  made  be  made  with  or  without  costs,  and  upon 
such  terms  as  to  the  court  or  judge  may  seem  fit.^ 

1898,  p.  538,  §  25;   Rev.  1874,  §  20. 

This  section  remains  the  same  as  when  first  enacted  as  §  20 
of  the  Kevision  of  1874. 

1.  Prior  to  this  statute  the  circuit  court  had  power  to  amend 
its  files  and  records,  even  in  a  mechanic's  lien  suit  (but  not  the 
lien  claim)  under  the  Practice  Act,  Vreeland  v.  Boyle,  8  Vroom 
346;  MuL,  etc.,  Co.  v.  Rowand,  11  C.  E.  Gr.  389;  and  so  it  was 
held  that,  before  or  after  plea,  the  summons  against  the  defend- 
ant as  builder  might  be  amended  so  as  to  be  against  him  as  builder 
and  owner,  Cornell  v.  Matthews,  3  Dutch.  522 ;  or  that,  in  a  suit 
to  enforce  a  lien  against  the  husband's  interest,  in  an  estate  by 
the  entirety,  the  name  of  the  wife  might  be  struck  out  as  a  de- 
fendant and  the  suit  proceed  against  the  husband  only,  Washhurn 
V.  Burns,  5  Vroom  18. 

So  where  the  summons  was  defective  and  an  order  was  ob- 
tained to  issue  a  new  summons  more  than  a  year  after  the  date 
of  the  last  item  of  claim,  the  service  of  such  new  summons  was 
held  good  and  effectual  to  validate  the  lien.  Mut.  Ben.,  etc.,  Co. 
V.  Rowand,  11  C.  E.  Gr.  389. 


Revision  of  1898,  §  2Q.  129 

But  where  the  defect  is  the  result  of  a  deliberate  choice  on 
the  part  of  the  claimant  to  sue  as  owner  one  whom  he  knows 
to  be  not  such,  an  amendment  may  be  refused.  Ba/rtley  v.  Smith, 
14  Vroom  321. 

As  is  noted  above  (§  24,  note  5)  the  way  to  correct  an  erro- 
neous judgment  is,  by  having  the  record  amended,  if  it  be  erron- 
eous by  mistake  of  fact;  by  writ  of  error,  for  mistake  in  law. 
Cutter  V.  Kline,  8  Stew.  534. 

Parties  in  case  of  death  of  builder,  mortgagee,  or  owner. 

26.  In  case  of  the  death  of  the  builder  or  mortgagee  the 
suit  on  the  lien  claim  may  be  against  the  executors  or  admin- 
istrators of  said  builder  or  mortgagee ;  and  in  case  of  the 
death  of  the  owner,  mav  be  against  his  heirs  or  devisees ;  pro- 
vided, that  if  any  builder,  mortgagee  or  owner  has  died  or 
shall  hereafter  die  after  the  filing  of  the  lien  claim  and  the 
issuance  of  the  summons  pursuant  to  the  terms  of  this  act, 
then  such  suit  shall  not  be  abated,  but  shall  proceed  against 
the  executors  or  administrators  of  such  deceased  builder  or 
mortgagee  and  against  the  heirs  and  devisees  of  such  deceased 
owner,  upon  the  death  of  such  builder,  mortgagee  or  owner 
being  suggested  on  the  record  and  upon  the  names  of  the 
executors  or  administrators  of  such  deceased  builder  or  mort- 
gagee, or  the  names  of  the  heirs  and  devisees  of  such  deceased 
owner  being  entered  on  said  record ;  and  in  any  such  case, 
if  the  time  limited  by  this  act  for  issuing  such  summons  has 
expired,  the  summons  already  issued  may  be  amended  as  to 
such  deceased  party  or  parties,  and  the  time  for  the  retura 
thereof  mav  be  extended,  if  necessarv,  and  such  amended 
summons  shall  then  be  served  as  other  summons  are  served 
under  this  act. 

1905,  p.  ^5^;    1898,  p.  538,  §  26;   1866,  p.  1015,  §  2; 
Bev.  lS7Jt,  §  21. 

The  act  of  1866  provided  that  the  lien  might  be  claimed,  filed, 
and  enforced  by  suit,  against  the  executors  or  administrators  of 
the  builder  or  owner.  This  statute  was  construed,  in  Rohhins  v. 
Bunii,  5  Vroom  322,  and  it  was  there  held  that  it  was  not  the 
legislative  intent  to  change  the  judicial  construction,  previously 
put  upon  the  act  of  1853,  in  Edwards  v.  Derrickson,  4  Dutch.  39; 
s.  c.,  5  Dutch.  468;  and  Gordon  v.  Torrey,  2  McCart.  112,  that 
the  owner  when  the  lien  claim  is  filed  is  the  proper  party  defend- 
ant as  such;  but  that  its  purpose  was  to  prevent  the  abatement  of 
the  proceedings  upon  the  lien  claim,  by  the  death  of  the  builder 
or  owner.  It  had  been  decided  previouslv  to  1866,  in  Ayres  v. 
9 


130  Mechanics  Lien  Law. 

Revere,  1  Dutch.  474  (1856),  that  where  the  builder  had  died 
after  the  lien  claim  was  tiled,  no  suit  could  be  maintained  to  en- 
force the  claim  against  the  builder's  administrators;  and  it  was, 
therefore,  also  questionable  whether  the  lien  could  be  enforced 
by  suit,  if  the  owner  should  die  after  the  lien  claim  was  hied; 
for  the  same  reason,  upon  which  Ayres  v.  Revere  was  decided, 
viz.:  that  the  suit  could  not  be  maintained  against  the  builders' 
representatives  because  the  act  did  not  expressly  nanae  them  as 
possible  parties,  applied  also  to  the  ease  of  a  deceased  owner's 
representatives.  The  enactment  of  1866  was  obviously  intended 
to  extend  the  remedy  to  the  case  of  either  a  deceased  builder  or 
owner,  by  preventing  an  abatement  by  the  death  of  eitlier  after 
the  lien  claim  was  filed;  and  so  was  the  decision  in  Robbins  v. 
Bunn,  as  above  said. 

By  the  Revision  of  1874,  adopted  without  change  in  the  Re- 
vision of  3898,  as  §  26,  the  provision  read:  "In  case  of  the 
death  of  the  builder,  the  suit  on  the  lien  claim  may  be  against 
his  executors  or  administrators;  and  if  the  owner  be  dead,  such 
suit  may  be  against  his  heirs  or  devisees." 

It  was  plainly  so  worded,  so  as  to  ado^t  the  construction  of 
the  court  in  Robbins  v.  Bunn,  whose  suggestion,  that  the  heirs 
or  devisees  of  the  deceased  owner,  and  not  his  personal  representa- 
tives, ought  to  be  the  parties  to  be  sued,  was  also  adopted.  It  is 
to  be  noted  that  the  provision .  of  the  act  of  1866,  that  the  lien 
might  be  claimed  and  filed  (as  well  as  enforced)  against  the  rep- 
resentatives of  a  deceased  builder  or  owner,  was  left  out  of  the 
Revision  of  1874  as  well  as  the  Revision  of  1898,  and  that  it 
has  also  been  left  out  of  the  section  as  it  now  stands  amended 
by  the  act  of  1905. 

Execution.  General  or  special  fi.  fa.  Separate  or  com- 
bined writ.  Successive  writs.  Docketing  judgments  in 
Supreme  Court. 

27.  Where  judgment  is  entered  generally  against  tJie 
builder,  a  writ  or  ^vrits  of  fieri  facias  mav  issue  thereon  as 
in  other  cases,  and  when  judgment  shall  be  against  the  build- 
ing and  lands,  a  special  writ  of  fieri  facias  may  issue  to 
make  the  amount  recovered  by  sale  of  the  building  and  lands; 
and  when  both  a  general  and  s}>ecial  judgment  shall  be  given, 
both  writs  may  be  issued,  either  separately  or  combined  in 
one  writ,  and  one  may  be  issued  after  the  return  of  the  otber 
for  the  whole  or  residue,  as  the  case  may  require ;  and  such 
judginents  may  be  docketed  in  the  supreme  court,  and  execu- 
tion had  thereon  as  (in  the  cose  of  other  judgments). 

189S,  p.  538,  §  27;  185S,  p.  Jf37,  §  10;  Rev.  1874,  §  ^^. 


Kevision  of  1898,  §  28.  131 

This  section  is  the  same  as  it  was  when  originally  enacted  in 
1853,  and  as  it  stood  in  the  Revision  of  1874,  with  the  exception 
that  the  words  in  parentheses  take  the  place  of  the  words — "other 
judgments  may  be,"  in  the  earlier  drafts. 

See  §  24,  supra,  note  6,  that  a  claimant  entitled  to  a  general  as 
well  as  a  special  judgment,  may  waive  either  and  enter  the  other. 

Proceedings  under  special  fl.  fa.  Sale  and  conveyance. 
Estate  conveyed.  Prior  encumbrances.  Constructions 
removable  as  between  landlord  and  tenant. 

28.  Under  such  special  fieri  facias  the  sherifi:"  or  other 
officer  shall  advertise,  sell  and  convey  said  building  and  lot 
in  the  same  manner  as  directed  by  law  in  case  of  lands  levied 
upon  for  debt,  and  the  deed  given  by  such  sheriff  or  other  offi- 
cer shall  convey  to  the  purchaser  the  estate  which  the  owner 
had  in  the  lands  at  the  commencement  of  the  building,^  or 
which  he  subsequently  acquired,  and  also  in  the  building,  sub- 
ject only  to  all  mortgages  and  other  encumbrances  created  and 
recorded,  or  registered  prior  to  the  said  commencement  of 
the  improvement,  (and  also  subject  to  the  lien  of  any  mort- 
gaige  given,  and  recorded,  w  registered,  under  the  circum- 
stances contemplated  hy  and  in.  conformity  with  the  provi- 
sions of  sections  IJ^  and  15  of  this  act)^ ;  and  in  case  of  gear- 
ing or  machinery,  the  bringing  of  the  same  upon  the  premises 
shall  be  such  commencement ;  and  such  prior  encmnbrances 
shall  have  priority  to  all  subsequent  builders'  liens  upon  said 
lands  and  upon  the  erections  thereon,  except  such  as  may 
be  removed,  as  between  landlord  and  tenant,  which  may  be 
sold  and  removed  by  virtue  of  any  building  lien  for  the  con- 
struction of  the  same,  free  from  such  prior  encumbrances. 

1898,  p.  538,  §  28;    1853,  p.  437,  %  11;   1863,  p.  275, 
§  1;  Rev.  1874,  §  23;   1879,  p.  71,  §  1;   1895,  p.  313, 

With  the  exception  of  the  words  in  parentheses;  which  are  in- 
serted because  of  the  act  of  1870.  p.  71,  §  1  (now  embodied  with 
a  material  chaniie  in  §  14)  and  the  act  of  189.5,  p.  313,  §  6  (em- 
bodied without  change  or  addition  as  §  15),  and  the  further  ex- 
ception, that  the  word,  "improvement,"  is  substituted  for  the 
word,  "building,"  the  foregoing  section  is  derived  entirely  from 
the  act  of  1853,  §  11,  the  act  of  1863,  p.  275,  §  1,  and  the  Rev. 
of  1874.  §  23.  To  facilitate  comparison,  these  three  enactments 
are  given  below  in  parallel  columns: 


132 


Mechanics  Lien  Law, 


1853,  p.  W,  §  11- 
The  deed  *  *  shall 
convey  to  the  pur- 
chaser said  buildings 
free  from  any  former 
incumbrance  on  the 
lands,  and  shall  con- 
vey the  estate  in  the 
lands  vfhich  said  own- 
er had  at  or  any  time 
after  the  commence- 
ment of  the  building, 
within  one  year  be- 
fore the  filing  such 
claim,  etc.,  subject  to 
all  prior  e  n  c  u  m- 
brances  and  f^ee 
from  all  encum- 
brances or  estates 
created  by,  or  ob- 
tained against,  such 
owner  afterwards, 
and  from  all  estates 
and  encumbrances 
created  by  deed  or 
moi-tgage  made  by 
such  owner,  or  any 
claiming  under  him, 
and  not  recorded  or 
registered  etc.  at  the 
commencement  o  f 
said  building. 


186S,  p. 
The  sale 
convey  — 


275, 


i  1- 
shall 


the 
estate  of  the  owner  in 
the  lands 


and  in 

the     building 

subject  to  all  mort- 
gages and  other  en- 
cumbrances created 
and  recorded  or  regis- 
tered prior  to  the, 
commencement  of  the 
building : 


and  in  case  of 
gearing  or  machinery, 
the  bringing  of  the 
same  on  the  premises 
shall  be  such  com- 
mencement; and  such 
prior  encumbrances 
shall  have  priority  to 
all  subsequent  build- 
er's liens  upon  said 
lands  and  upon  all 
erections  thereon,  ex- 
cept such  as,  by  law 
may  be  removable,  as 
between  landlord  and 
tenant,  and  which 
may  be  sold  and  re- 
moved, by  virtue  of 
any  building  lien  for 
the  construction  of 
the  same,  free  from 
such  prior  encum- 
brances. 


Rev.  187 J^,  §  ^3. 
The  deed    *    *    shall 
convey    to    the    pur- 
chaser   


the 

estate  which  the  own- 
er had  in  the  lands  at 
the  commencement  of 
the  building  or  which 
he  subsequently  ac- 
quired,   and    also    in 

the  building, 

subject     to 

all  mortgages  and 
other  encumbrances 
created  and  recorded 
or  registered  prior  to 
the  commencement  of 
the   building : 


and  in  case  of 
gearing  or  machinery, 
the  bringing  of  the 
f^ame  on  the  premises 
shall  be  such  coal- 
men cement;  and 
such  prior  encum- 
brances shall  have 
priority  to  all  subse- 
quent builder's  liens 
upon  said  lands  and 
upon  all  erections 
thereon,  except  such 
as,  may 

be  removable,  as  be- 
tween landlord  and 
tenant,,  and  which 
may  be  sold  and  re- 
moved', by  virtue  of 
any  building  lien  for 
the  construction  of 
the  same,  free  from 
such  prior  encum- 
brances. 


Revision  of  1898,  §  28.  133 

1.  WHO  IS  OWNER.  As  will  be  seen  by  reference  to  the  de- 
cisions cited  under  g  16,  the  person  who  is  to  be  named  as  owner 
is  the  one  who  is  such  at  the  time  the  lien  claim  is  filed.  Those 
who  succeed  to  his  rights  after  the  lien  claim  is  filed  take  as 
purchasers  pendente  lite  and  are  barred  by  the  proceedings  to 
enforce  the  lien,  although  not  made  parties,  except  in  so  :far 
as  §  23  provides  otherwise  as  to  mortgagees,  and  as  §  26  may  now 
require  in  the  case  of  the  death  of  the  owner  or  mortgagees. 

The  words  of  the  present  section  make  the  lien  bind  the  estate 
of  such  owner  and  his  successors  which  he  had  at  the  commence- 
ment of  the  building  or  which  he  subsequently  acquired.  See  as 
to  this  the  cases  cited  under  §  16;  also  under  §  23,  Chang©  of 
Title;   also  Stewart  Co.  v.  Trenton  Co.,  42  Vroom  568. 

COMMENCEMENT  OF  THE  BUILDING.  It  is  well  estab- 
lished that  when  the  permanent  work  upon  the  ground,  whether 
of  excavation  or  of  construction,  has  progressed  so  far  as  to  in- 
form reasonable  obser^'ers  that  it  is  designed  for  the  erection  of 
a  building,  then  the  building  has  begun.  The  statute  intends  such 
a  commencement  as  shall  be  an  unequivocal  notice  of  an  intent 
to  build  a  building,  and  so  much  must,  therefore,  be  done  as  will 
apprise  observers  that  a  building  is  in  progress.  Jacohus  v.  Mut., 
etc.,  Co.,  12  C.  E.  Gr.  604;  11  C.  E.  Gr.  389,  sub  nom.,  Mut.,  etc., 
Co' V.  Rowand;  Burd  v.  Huff,  17  N.  J.  L.  J.  80;  James  v.  Van 
Horn,  10  Vroom  353. 

NEW  COMMENCEMENT.  A  change  of  ownership  during 
the  progress  of  the  building  does  not  make  a  new  commencement; 
nor  does  an  interruption  of  the  work,  for  a  short  period,  or  for 
months  at  a  time  where  there  is  nothing  to  indicate  an  intent  to 
abandon  the  work,  when  the  work  is  subsequently  resumed,  with- 
out change  in  the  original  design  and  character,  Gordon  v.  Tar- 
rey,  2  McCart.  112;  Manhattan,  etc.,  Co.  v.  Paulison,  1  Stew.  304; 
but  where  the  owner  fails  after  the  work  is  begun  and  the  work 
lies  abandoned  for  a  long  time,  and  a  new  purchaser  then  takes 
up  its  completion,  after  the  former  work  and  materials  have 
been  paid  for,  the  later  beginning  of  the  work  is  the  commence- 
ment as  to  all  claims  for  labor  or  materials  thereafter  furnished. 
Cueman  v.  Barnes,  11  N.  J.  L.  J.  172. 

EVIDENCE  OF  THE  COMMENCEMENT.  The  time  of  the 
commencement  is  not  required  to  be  specified  either  in  the  lien 
claim  or  the  record  of  the  judgment;  and,  unless  the  fact  is  in 
some  way  put  in  issue  and  found  by  the  jury,  an  entry  of  the 
time  either  in  the  lien  claim  or  the  record  of  the  judgment  would 
be  unauthorized  and  unavailing,  as  evidence.  Gordon  v.  Torrey, 
2  McCart.  112.  At  the  time  this  decision  was  given,  the  statute 
did  not  provide  for  making  mortgagees  parties  to  the  suit  on  a 
lien  claim,  nor  that  the  judgment  should  determine  priorities  as 
between  lien  claimants  and  defendant  mortgagees,  as  it  now  does. 
See  §  24,  note  5,  Conclusiveness  of  Judgment  as  Establishing 
Priorities. 


loi  Mechanics  Liex  Law. 

2.  PRIOIiITIES.  In  order  to  comprehend  the  effect  of  this 
statute,  in  respect  of  the  relative  priorities  of  the  lien  claim  and 
other  encumbrances,  it  is  necessary  to  read  this  section  and  §§  10, 
14  and  15  together,  and  to  carefully  analyse  their  provisiona. 
This  analysis  is  attempted  later  in  this  note,  as  we  may,  first, 
stop  to  notice  another  matter,  namely: 

PEIORITY  OF  LIEN  AS  TO  THE  BUILDING  ONLY.,  As 
will  be  perceived,  the  original  act  of  1853,  gave  a  mechanic's  lien 
priority,  in  respect  of  the  building,  over  any  previous  encumbrance 
on  the  land,  but  made  it,  in  respect  of  the  land,  subject  to  all  such 
previous  encumbrances  thereon.  The  result  was.  that  when  there 
was  a  mechanic's  lien  and  a  prior  encumbrance,  the  value  of  the 
land  and  building,  and  of  the  land  without  the  building,  li«id  to 
be  determined,  in  order  that  the  relative  share  of  the  respective 
claimants,  in  tlie  proceeds  of  sale  might  be  ascertained.  Whitehead 
V.  First  Alethodist  Church,  2  McCarter  135;  Newark  Lime  Co.  v. 
Morrison.  2  Beas.  133;  and,  as  it  was  obviously  inequitable,  that 
this  prior  right  of  a  lien  claimant,  in  respect  of  the  building, 
should  extend  beyond  that  which  his  labor  or  materials  had  con- 
tributed to;  it  was  held,  in  the  case  of  a  claim  for  additions, 
that  such  prior  right,  as  to  the  building,  extended  only  to  such 
additions,  and  not  to  the  building  to  which  they  were  added. 
White nack  v.  Noe,  3  Stock.  413. 

This  peculiar  priority  of  a  lien  claim,  in  respect  of  the  building, 
had  no  very  long  life,  in  the  extent  to  which  it  was  originally 
given,  by  the  act  of  1853;  for  the  act  of  1863,  as  will  be  noticed 
although  still  leaving  the  lien  claim  superior  to  prior  encum- 
brances on  the  land,  as  to  buildings  actually  erected  by  a  tenant 
(and  not  by  the  owner),  and  removable  as  between  such  owner 
and  tenant,  Heidelhach  r.  JacoJji.  1  Stew.  544.  in  all  other  respects, 
abrogated  the  priority  in  question,  and  the  law,  in  that  respect, 
has  remained  unchanged  ever  since.     We  now  take  up  the — 

ANALYSIS  OF  §§  10,  14,  15  AND  28.  As  will  be  seen,  by 
reference  to  §  10,  a  lien  claim,  for  alterations  or  repairs,  is  post- 
poned to  bona  fide  purchasers  or  mortgagees  whose  rights  accrue 
before  the  lien  claim  is  filed.  By  refernce  to  §  28,  it  appears,  that 
all  other  classes  of  lien  claims  are  postponed  only  to  such  other 
encumbrances  as  are  created  and  recorded  before  the  commence- 
ment of  the  building  or  improvement,  or  to  such  mortgages  as 
are  given  and  recorded  under  the  circumstances  contemplated  by, 
and  in  conformity  with  the  provisions  of  §§  14  and  15.  By 
reference  to  §§  14  and  15,  it  api>ears,  that,  by  virtue  of  their 
provisions,  a  lien  claim  is  postponed  to  a  mortgage  which  is  an 
advance  money  mortgage,  to  the  exteiit  that  it  is  such,  and  that 
money  has  actually  been  advanced  by  the  mortgagee  for.  and  has 
been  actually  applied  to,  the  building  or  improvement;  if  such 
mortgage  is  recorded  before  the  lien  claim  is  filed.  The  priorit.y 
of  a  lien  claim,  as  against  the  claims  of  non  lienors,  therefore, 
depends  upon  two  things,  namely,  first,  the  nature  of  the  improve- 
ment; and,  second,  the  nature  of  the  non  lienor's  encumbrance; 
and 


Kevisio.v  or  1S9S,  §  28.  135 

FIRST  (a).  If  the  lien  claim  is  for  repairs  or  alterations,  its 
priority  is  determined,  as  against  bona  fide  purchasers  or  mort- 
gagees, other  tluni  advance  money  mortgagees,  accordingly  as  the 
lien  claim  is  filed  before  or  after  the  rights  of  such  purchasers 
or  mortgagees  accrue: 

(6).  As  against  advance  money  mortgages,  to  the  extent  that 
the  money  has  actually  been  advanced  and  applied  to  the  improve- 
ment, its  priority  is  determined  accordingly  as  it  was  filed  before 
or  after  such  mortgages  are  recorded ;  and 

(c).  As  to  all  other  non  lienor  claimants  (attaching  creditors, 
and  judgment  creditors),  its  priority  is  determined  accordingly  as 
the  building  was  begun  before  or  after  such  encvunbrances  attached. 
SECOND  (a).  If  the  lien  claim  is  for  anj-thing  other  than 
alterations  or  repairs,  its  priority  is  determined,  as  against  advance 
money  mortgagees,  to  the  extent  that  the  money  has  actually  been 
advanced  and  applied  to  the  improvement,  accordingly  as  the  lien 
claim  is  filed  before  or  after  such  mortgages  are  recorded;  but, 

(b).  As  against  all  other  mortgages  and  encumbrances,  the 
priority  of  the  lien  is  determined  accordingly  as  the  improvement 
was  begun  before  they  were  created  and  recorded. 

From  this  analysis,  the  somewhat  peculiar  fact  emerges,  that  the 
statute  gives,  to  an  advance  money  mortgage,  a  preference,  over  a 
lien  claim,  which  it  denies  to  a  mortgage  given  to  secure  a  general 
loan.  For  example,  let  a  building  be  begun  May  1,  and  let  the 
owner  on  May  10,  borrow  $1,000,  for  his  general  purposes  to  which 
it  is  applied,  from  mortgagee  A;  on  June  1,  let  the  owner  give  a 
mortgage  to  B,  to  secure  $1,500,  to  be  advanced  for  the  building 
and  as  it  progresses,  and  let  the  money  be  so  advanced  and  duly 
applied;  let  both  mortgages  be  recorded  on  the  day  they  are 
respectively  given,  and  let  a  lien  be  filed  for  $500  on  September  1 ; 
then  the  lien  claim  will  be  prior  to  A's  mortgage  but  subject  to 
B's;  and,  as  a  result  of  this  fact,  if  the  premises  do  not  sell  for 
enough  to  pay  the  lien  claim  and  both  mortgages,  the  later  mort- 
gage would  seem  to  have  a  preference  over  the  earlier  mortgage, 
as  will  be  seen  by  assuming  that  the  proceeds  of  sale  amount  to 
$2,500,  and  then  figuring  out  the  application  thereof. 

Or  to  state  the  result,  of  the  case  supposed,  in  the  form  of  a 
syllogism, — 

The  lien  claim  is  prior  to  the  first  mortgage ; 
The  second  mortgage  is  prior  to  the  lien  claim ;  and  therefore 
The  second  mortgage  is  prior  to  the  first. 

In  this  syllogism,  both  premises  are  given  by  the  statute,  but 
the  conclusion,  while  therefore  inevitable,  is,  to  say  the  least, 
startling.  But  it  cannot  be  impugned  on  that  account;  if  the 
legislature  has  power  to  pass  a  law,  capable  of  producing  such  a 
result.  In  Tompkins  v.  Horton,  10  C.  E.  Or.  284.  it  is  said,  "The 
mortgagee,  whose  li^  is  taken  with  notice  of  the  liability  of  the 
land  to  the  lien  created  by  the  statute,  etc.,  cannot  complain  of  a 
result  which  he  had  reason  to  anticipate,  and  which  he  is  presumed 
to  have  contemplated.  Every  man  must  be  presumed  to  know  the 
public  laws  in  existence,  and  to  have  contracted  with  reference  to 


136  Mechanics  Lien  Law. 

tJieir  provisions."  It  was,  therefore,  held  that  the  complainant  had 
no  ground  to  complain  of  the  statute,  for  postponing  his  mortgage 
(taken  after  the  building  was  begun)  to  lien  claims  subsequently 
filed,  and  for  enabling  the  proceedings  on  such  lien  claims  to  cut 
off  his  rights,  as  mortgagee,  wholly  without  notice  of  such  proceed- 
ings and  without  an  opportunity  to  litigate  the  matter.  The  stat- 
ute, now  in  consideration,  gives  notice  of  the  liability  of  the  land 
to  the  prior  lien  which  it  creates,  in  favor  of  an  advance  money 
mortgagee ;  and  so  seems  clearly  valid,  in  respect  of  a  general  mort- 
gage taken  subsequently  to  its  enactment.  The  wisdom  or  unwis- 
dom of  the  law,  is,  of  course,  entirely  beside  the  question.  The 
legislature  has  the  power  to  make  a  law  capable  of  producing  the 
result  above  pointed  out,  and  it  seems  to  have  exercised  it. 

PUECHASE  MONEY  MOETGAGES.  The  statute  says  that 
the  conveyance,  pursuant  to  a  special  judgment  on  a  lien  claim, 
shall  convey  the  estate  which  the  owner  had  at  the  commencement 
of  the  building,  etc.  Consequently,  when,  at  the  time  the  owner 
gets  title,  he  also,  and  as  part  of  the  same  transaction,  gives  a 
mortgage  back  to  secure  the  purchase  price,  in  whole  or  in  part,  the 
estate,  of  which  he  thus  becomes  seized,  is  the  equity  of  redemp- 
tion only,  and  the  mortgage  is  clearly  prior  to  any  lien  claim  for 
an  improvement  begun  before  such  mortgage  was  recorded.  Na- 
tional Bank  v.  Sprague,  5  C  E.  Gr.  13;  Strong  v.  Van  Deursen, 
8  C.  E.  Gr.  369;  Huher  v.  Diehold,  10  C.  E.  Gr.  170;  Macintosh  v. 
Thurston,  10  C.  E.  Gr.  242;  Gihbs  v.  Grant,  2  Stew.  420;  Clark 
V.  Butler,  5  Stew.  664;  Bradley  v.  Byran,  16  Stew.  396;  Lamb 
V.  Cannon,  9  Vr.  362;  New  Jersey,  etc..  Co.  v.  Bachelor,  9  Dick, 
600. 

SIMULTANEOUSNESS.  The  transaction  is  a  single  one,  if 
so  clearly  intended,  although  there  may  be  a  space  of  time  inter- 
vening between  the  manual  delivery  of  the  deed  and  that  of  the 
m^ortgage.  New  Jersey,  etc.,  Co.,  v.  Bachelor,  supra;  although, 
in  Huher  v.  Diehold,  supra,  where  the  A'endor  and  vendee  verb- 
ally agreed  that  the  vendor  was  to  give  a  deed  and  take  back  a 
mortgage  to  secure  part  of  the  purchase  price,  but  the  deed  was 
delivered  more  than  two  months  before  the  mortgage  was  given 
(the  date  of  the  delivery  of  the  deed,  in  the  absence  of  other 
proof,  being  presumed  from  the  date  of  the  deed),  it  was  held 
that  a  lien  claim,  for  work  done  partly  before  and  partly  aft«r 
the  date  of  the  deed,  was  prior  to  the  mortgage. 

THIRD  PARTY  MORTGAGEE.  By  an  extension  of  the  rule 
a  third  person  who  advances  the  purchase  money  to  the  vendee 
and  takes  the  mortgage  at  the  same  time  that  the  deed  is  deliv- 
ered, and  as  part  of  the  same  single  transaction,  stands  in  the 
vender's  shoes,  in  that  behalf;  so  that  there  still  is  conveyed  to 
the  vendee  only  the  equity  of  redemption.  Macintosh  v.  Thurs- 
ton, supra;  Gihhs  v.  Grant,  supra;  Clark  v.  Butler,  supra;  New 
Jersey,  etc.,  Co.  v.  Bachelor,  supra. 

MOMENTARY  SEIZIN  OF  MORTGAGOR.  It  is  frequently 
said,  in  the  cases  above  cited,  that  the  priority  of  a  purchase 
money   mortgage   is  due  to  the  fact,   that  the  seizin  of  the  fee, 


Revision  of  1898,  §  28.  137 

by  the  mortgagor,  is  so  transitory  that  no  lien  can  attach  to  it; 
but,  as  was  distinctly  held  in  Wallace  v.  Sitshy,  13  Vroom  1,  and, 
as  is  emphasized  in  the  able  opinion  of  Vice  Chancellor  Stevens, 
in  New  Jersey,  etc.,  Co.  v.  Bachelor,  supra,  the  true  reason  is  the 
fact  that  the  mortgagor  is  not  beneficially  seized,  even  for  a 
moment,   of  anything   beyond   the  equity  of   redemption. 

PURCHASE  MORTGAGE  SECUEING  ALSO  MONEY  BE- 
YOND THE  PUECHASE  PEICE.  It  is  on  the  ground  last 
above  referred  to  that  the  decision  in  Macintosh  v.  Thurston, 
supra,  is  said,  by  Vice  Chancellor  Stevens,  to  rest,  in  holding 
that  a  mortgage  had  preference  over  a  lien  claim,  for  a  building 
begmi  between  the  execution  of  the  contract  of  purchase  and  the 
conveyance,  not  only  to  the  extent  of  the  purchase  price,  but  also 
for  advances  made,  pursuant  to  the  contract  of  purchase,  for 
building  the  house,  improving  the  grounds,  and  paying  taxes. 
That  is,  the  vendee's  beneficial  estate,  by  the  terms  of  the  bar- 
gain, was  not  the  fee  out  of  which  he  was  then,  by  the  mortgage, 
to  carve  an  estate  for  the  mortgagee;  but  it  never  was  anything 
but  the  equity  of  redemption  remaining  after  first  imposing  the 
mortgage,  to  its  full  amount,  upon  the  fee. 

In  Gihhs  V.  Grant,  supra,  on  the  contrary,  it  was  held  that  a 
mortgage  to  the  full  amount  secured  by  it,  for  money  advanced 
generally  to  the  vendee,  as  well  as  for  the  purchase  price,  and 
executed  simultaneously  with  the  conveyance,  was  prior  to  a 
mechanic's  lien,  for  a  building  previously  begun,  although  the 
mortgagee  was  a  third  party,  other  than  the  vendor,  and  the 
bargain,  between  the  vendor  and  vendee,  did  not  contemplate  any- 
thing but  a  conveyance  of  the  land  to  the  vendee,  upon  the  pay- 
ment of  the  agreed  price  thereof. 

Vice  Chancellor  Stevens,  in  New  Jersey,  etc.,  Co.  v.  Bachelor, 
supra,  insists  that  the  decision,  in  Gibhs  v.  Grant,  does  not  con- 
trol the  question  in  consideration  as  it  does  not  appear  to  have 
been  there  distinctly  raised  and  passed  upon,  and  he,  therefore, 
in  the  Bachelor  case,  where  the  facts  were,  in  substance,  identical 
with  those  in  Gdhbs  v.  Grant,  held  that  the  mortgage  was  prior 
to  the  mechanics*  lien,  to  the  extent  of  the  purchase  price  secured 
by  it,  but  was  subject  to  the  lien  claim,  to  the  extent  of  the 
residue  secured  by  it. 

It  is  to  be  noted  that  in  Macintosh  v.  Thurston  and  Gihhs  v. 
Grant,  the  rights  of  the  parties  were  vested  before  the  act  of  1879, 
p.  77,  was  passed  (see  §  14  above),  and  that  the  Bachelor  case 
was  not  within  the  scope  of  that  act,  and  that  the  rights  of  the 
parties  therein  were  vested  before  the  act  of  1895,  p.  313,  §  6 
(see  §  15  above),  was  passed. 

PUECHASE  MOETGAGE  IN  PLACE  OF  PEIOE  MOET- 
GAGE  EELEASED.  ^\^lere  the  vendee,  in  order  to  free  the  title 
he  is  seeking  to  acquire,  from  the  lien  of  a  prior  mortgage,  cover- 
ing other  lands  and  securing  a  verj'^  large  sum  of  money,  at  the 
same  time  that  he  takes  the  cx)nveyance,  gives  to  such  prior  mort- 
gagee a  new  mortgage,  to  secure  a  less  sum,  and  receives  a 
release  of  his  land  from  such  prior  mortgage,  such  new  mortgage 


138  Mechanics  Liex  Law. 

is  a  purchase  money  mortgage,  and  is,  therefore,  prior  to  a  lien 
claim  for  a  building  begun  by  the  vendee  before  the  deed  and 
mortgage  are  delivered.  Clark  v.  Butler',  5  Stew.  064.  This  case 
was  referred  to  in  the  Bachelor  case  above  mentioned.  The  reason 
of  the  decision  is,  that  the  beneficial  estate,  conveyed  to  the  ven- 
dee, was  the  equity  of  redemption  only. 

In  Kittredge  v.  Newmann,  11  C.  E.  Gr.  195,  the  facts  were 
similar  to  those  in  Clark  v.  Butler  with  the  very  important  differ- 
ence that,  in  the  Kittredge  case,  both  the  vendor  and  vendee  were 
married  women,  neither  of  whom  had  filed  any  dissent,  and  as 
the  lien  had  attached  to  the  vendor's  estate  before  the  cotiveyance 
to  the  vendee,  the  court  was  obliged  to  hold  that  the  lien  claim 
was  prior  to  the  mortgage. 

SUBROGATION.  Akin  to  the  case  of  a  purchase  mortgage 
to  a  person  other  than  the  vendor,  is  that  of  a  mortgagee  whose 
mortgage,  while  created  and  recorded  after  the  building  is  begun, 
is  given  to  secure  moneys  loaned  b.y  him  to  pay  off  a  prior  mort- 
gage held  by  another  person  and  existing  before  the  building  was 
begun,  in  which  case  it  is  held  that  such  new  mortgage  has  an- 
equity  in  the  land,  prior  to  a  lien  claim,  quoad  the  amount  so 
paid  on  the  prior  mortgage,  by  right  of  subrogation,  even  although 
a  transfer  of  tlie  mortgage,  upon  such  payment,  is  not  made,  as 
it  regularly  should  have  been.  Barnett  v.  Griffith,  12  C.  E.  Gr. 
201.  So  where  a  mortgagee  whose  mortgage  is  subject  to  sev- 
eral lien  claims,  pays  a  judgment  recovered  on  one  of  such 
claims,  he  is  entitled,  on  petition,  to  be  subrogated  to  the  rights 
of  the  judgment  claimant  and  entitled  to  use  the  judgment  for 
all  purposes  for  which  it  would  be  useful  to  him.  Egbert  v.  De 
Camp,  3  N.  J.  L.  J.  284. 

INCHOATE  RIGHT  OF  DOWER.  A  mechanics  lien  against 
the  land  of  a  man,  whose  wife,  at  the  time  the  building  is  begun, 
is  an  infant,  is  subject  to  the  wife's  inchoate  right  of  dower, 
in  the  land,  apart  from  the  improvement  put  thereupon.  Barnett 
v.  Griffith,  12  C.  E.  Gr.  201.  Perhaps  by  virtue  of  §  13,  supra, 
this  would  not  be  so  in  the  case  of  a  married  woman  of  full  age, 
and  so  capable  of  filing  a  dissent. 

MERGER  OF  MORTGAGE.  Where  lands  are  subject  first 
to  a  mortgage  and  next  to  lien  claims,  and  the  equity  of  redemp- 
tion is  purchased  by  a  third  person  who,  subsequently,  at  sheriff's 
sale  on  foreclosure  of  the  mortgage,  purchases  the  premises,  the 
title  so  purchased  is  freed  from  the  lien  claims,  as  the  title  by 
foreclosure  sale  does  not  merge  in  the  prior  title  by  the  convey- 
ance of  the  equity  of  redemption.  Larnh  v.  Cannon,  9  Vroom  362. 
SUBSTITUTION.  WHiere  a  mortgagee,  whose  mortgage  is 
prior  to  a  mechanics  lien,  but  which  covers  other  lands,  as  well 
as  those  subject  to  such  lien,  at  the  request  of  the  mortgagor, 
and  without  consideration,  releases  such  other  lands  after  the 
building  was  begun,  but  in  good  faith  and  without  knowledge,  of 
the  existence  of  the  lien  claim,  although  with  knowledge  that  the 
building  was  begun;  the  lien  claimant  cannot  claim  the  bene- 
fit of  such  release  as  against  such  mortgagee.  Ward  v.  Hague,  10 
C.  E.  Gr.  397. 


Revision  of  1898,  §  29.  139 

CREATI0:N:  of  mortgage,  if  a  mortgage  be  recorded 
before  the  building  is  begun,  under  an  agreement  that  it  is  to 
be  delivered  thereafter  to  the  mortgagee  when  the  money  secured 
by  it  is  advanced,  it  may  be  considered,  by  relation,  to  have  been 
created  at  the  time  of  its  record  or  even  at  the  time  the  bargain 
was  made.  Jacobus  v.  Mut.,  etc.,  Co.,  12  C.  E.  Gr.  604;  reversing 
s.  c.  11  C.  E.  Gr.  389,  But  the  purchaser  of  mortgage  bonds, 
who  buys  of  the  mortgagor  with  knowledge  that  there  are  build- 
ing liens  which  must  be  enforced  because  of  the  latter's  insol- 
vency, is  not  entitled  to  priority  over  such  lien  claims,  although 
he  paid  a  present  consideration  for  such  bonds,  and  the  mort- 
gage was  recorded  before  the  building  was  begun.  Porch  y. 
Agnew  Co.,  4  Eob.  328.  Such  a  purchaser  is  not  a  purchaser  in 
good  faith  in  open  market,  nor  is  he  like  a  person  who  is  bound 
to  advance  money  upon  a  mortgage.  See  generally  the  notes  as 
to  advance  money  mortgages  under  §  14, 

The  statute  is,  of  course,  perfectly  clear  that  a  mortgage,  cre- 
ated and  recorded  after  the  building  is  begun,  is  subject  to  lien 
claims,  except  so  far  as  §§10,  14  and  15,  already  considered,  may 
provide  otherwise.  To  this  point  the  cases  already  above  cited 
in  these  notes  to  this  twenty-eighth  section,  may  be  cited.  See, 
also.  Mechanics,  etc.,  Co.  v.  Alhertson,  8  C.  E.  Gr.  318;  Erdman  v. 
Moore,  29  Vroom  445;  Currier  v.  Cunimings,  13  Stew.  145. 

And  where  there  was  a  filed  contract,  by  which  the  builder 
undertook  to  do  all  the  work  and  furnish  all  the  materials,  but 
the  owner  himself  purchased  and  furnished  some  of  the  materi- 
als, contrary  to  the  contract,  and  pending  the  building  gave  a 
mortgage  to  secure  moneys  loaned  to  him,  a  lien  claim  for  the 
materials  so  furnished  by  the  owner  does  not  lose  its  priority  over 
such  mortgage  because  of  the  fact  that  the  mortgagee  was 
imaware  of  the  owner's  act  and  supposed  that  the  builder  had 
furnished  all  that  the  contract  called  for.  Mechanics,  etc.,  Co. 
V.  Alhertson,  8  C.  E.  Gr.  318. 

Concurrence  of  lien  claims.  Distribution  of  proceeds  of 
sale  pro  rata.  Time  of  distribution.  Caveat  against 
claims.  Rules  of  practice  and  pleading,  etc.,  to  be  made  by 
Circuit  Court. 

29,  All  lien  claims  for  erecting-,  (adding  to,  repairing  or 
altering)  the  same  building-  shall  he  concurrent  liens  upon 
the  building'  and  the  land  whereon  the  same  is  erected,  and 
shall  be  paid  pro  rata^  out  of  the  proceeds  thereof,  when  sold 
by  virtue  of  this  act ;  and  for  the  purpose  of  distribution,  the 
sheriff  or  other  officer  shall  pay  such  proceeds  to  the  clerk  of 
said  circuit  court,  to  be  by  said  court  distributed^  among  such 
claims  filed,  or  as  shall  be  filed  according  to  this  act  before 
petition   filed    in    said    court    for   distribution    thereof,    and 


140  Mechanics  Lien  Law. 

among  such  only ;  but  the  amount  paid  to  any  claimant  shall 
not  be  paid  over  to  him  until  after  his  claim'  shall  have  been 
filed  for  three  months ;  and  if  a  caveat  be  filed  against  such 
claim  by  the  owner,  or  by  any  claimant  or  claimants  OAraing 
together  one-third  of  the  lien  claims  filed  against  such  build- 
ing, then  not  until  such  claim  shall  have  been  established  by  a 
special  judgment  thereon  f  and  such  circuit  courts  shall  have 
full  ix)wer  to  adopt  such  rules  of  practice  and  pleading,  and 
to  make  all  orders  necessary  and  proper  to  carry  into  effect 
the  objects  of  this  act,  and  to  secure  a  proper  disposition  of 
the  proceeds  of  sales  to  all  i^ersons  entitled  thereto  bv  the 
provisions  of  this  act. 

1898,  p.  538,  §  29;  1853,  p.  1^1,  §  11,;  Rev.  18U,  §  2J,. 

The  words  in  parentheses  are  added  in  the  Revision  of  1898, 
otherwise  the  act  reads  the  same  now  as  when  originally  enacted 
in  1853,  and  re-enacted  in  the  Revision  of  1874. 

1.  By  virtue  of  §  6,  ante,  the  claims  of  journeymen  or  labor- 
ers for  wages  are  given  a  preference  over  other  lien  claims.  The 
result  would  seem  to  be  that  all  lien  claims  of  the  same  class  are 
concurrent  inter  se;  but  that  claims  for  wages  as  a  class  are  prior 
to  other  claims. 

If  the  land  has  been  sold  under  foreclosure  of  a  mortgage,  to 
which  the  lien  claims  are  prior,  they  share  the  fund  produced  pro 
rata.  Stiles  v.  Galhreath,  3  Rob.  222;  aff.  s.  c.  1  Buch.  299.  See, 
also.  Federal  Trust  Co.  v.  Guigues,  74  Atl.  652. 

2.  Independently  of  this,  or  of  any  other  statutory  provisions, 
the  power  of  the  court,  issuing  process,  under  which  moneys  are 
made,  to  direct  the  disposition  thereof  seems  to  be  ample.'  The 
command  of  such  process  (and  the  process  of  execution  on  a  lien 
claim  is  no  exception)  always  is  that  the  sheriff  have  the  moneys 
in  court  to  render,  etc.  Anciently  this  command  was  required 
to  be  strictly  obeyed  in  all  cases;  and  although,  by  a  permissive 
departure  from  such  command,  it  is  now  the  usual  and  proper 
practice  for  the  sheriff  to  pay  the  proceeds  out  of  court  to  the 
party  entitled  thereto,  the  court  has  neither  surrendered  nor  lost 
its  i)ower  to  compel  the  money  to  be  paid  into  court  according 
to  the  command  of  the  writ,  and  to  direct  its  disposition  when  it 
is  so  paid  in.  Stehhins  v.  Walker,  2  Green  90.  Such  power,  of 
course,  is  limited  to  moneys  made  under  its  own  process.  Wood- 
ruff V.  Chajnn,  3  Zab.  566;  and  the  jurisdiction  to  determine  the 
disposition  thereof  is  exclusively  vested  in  such  court,  and  the 
propriety  of  its  determination  cannot  elsewhere  be  called  in  ques- 
tion, except  by  proper  proceedings  to  review  it  for  error  in  law. 
Heinselt  v.  Smith,  5  Vr.  215. 

The   power   will    be   exercised   wherever    there    is  good    reason 


Revision  of  1898,  §  29.  141 

therefor,  as  where  there  is  a  dispute  as  to  which  of  two  execu- 
tions is  entitled  to  the  proceeds,  or  where  there  are  surplus  moneys, 
after  satisfying  the  execution  under  which  the  sale  is  made,  which 
are  subject  to  the  equitable  liens  of  subsequent  claimants.  Mat- 
thews V.  Warne,  6  Halst.  695;  Williamson  v.  Johnson,  7  Halst. 
86;  Sterling  v.  Van  Cleve,  7  Halst.  285;  Cox  v.  Marlatt,  7  Vroom 
389;  Woodruff  v.  Chapin,  supra;  Stehhins  v.  Walker,  supra,  over- 
ruling, Thompson  v.  Pierson,  2  Pen.  1019;  and  the  sheriff  may, 
at  all  times,  voluntarily  payl  the  proceeds  into  court,  for  his  own 
security,  and  to  relieve  himself  from  the  responsibility  of  decid- 
ing upon  the  validity  or  priority  of  conflicting  claims,  Stehhins 
V.  Walker,  supra;  Woodruff  v.  Chapin,  supra;  although  he  ought 
not  to  do  so  without  good  reason  therefor.  Shallcross  v.  Beats, 
14  Vroom  177. 

To  obtain,  an  order  that  the  money  be  paid  into  court,  neither 
written  pleading  or  proof  is  necessarily  essential.  Gifford  v.  Mc- 
Guinness,  53  Atl.  87  (E.  &  A.). 

But  whether  the  money  be  paid  in  voluntarily,  or  upon  due  order, 
the  money,  when  once  it  is  brought  in,  not  only  may,  but  must, 
be  finally  disposed  of  by  the  court,  whether  it  be  the  Supreme  or 
Circuit  Court  or  the  Common  Pleas,  and  the  power  of  either 
court,  in  making  such  disposition,  is  not  limited  to  a  case  where 
all  the  contending  claims  are  founded'  on  executions  issued  out 
of  the  same  court;  nor  is  it  necessary  that  the  court  shall  have 
jurisdiction  of  tlie  persons  of  the  parties  having  conflicting  claims 
by  their  being  parties  of  record  in  a  suit  pending  in  said  court. 
Woodruff  V.  Chapin,  supra. 

Even  if  the  rights  of  the  parties  are  so  complica-ted  that  they 
can  be  settled  only  by  a  resort  to  a  court  of  equity,  the  court 
should  none  the  less  direct  the  moneys  to  be  brought  in  and 
retained  until  the  parties  have  had  an  opportunity  to  apply  to  that 
forum.     Stehhin'S  v.  Walker,  supra. 

Recurring  now  to  the  provision  of  the  statute,  requiring  the 
sheriflF  to  pay  the  proceeds  of  sale  into  court,  we  apprehend  that 
its  effect  is  to  make  the  sheriff  answerable  to  a  claimant  without 
regard  to  whether  or  not  he  has  actual  knowledge  of  his  claim. 
That,  we  think,  is  its  only  effect.  The  sheriff  could  al- 
ways discharge  himself  of  liability  by  paying  the  proceeds 
of  his  sale  into  court.  The  statute  makes  no  change  in 
that.  So  also  the  sheriff  could  always  discharge  himself  of 
liability  to  any  claimant,  by  paying  him  his  claim,  out  of  court; 
and  when  there  is  no  question,  as  to  who  is  entitled  to  the  money, 
or  as  to  the  amount,  it  would  be  vexatious  for  him  not  to  do  so. 
The  statute  has  not  changed  that.  But  the  sheriff  could  not  be 
held  to  account,  for  his  proceeds  of  sale;  if  he  paid  them  out  of 
court  to  the  parties  who  would  have  been  entitled  to  them,  had 
there  been  no  other  claimants;  when  he  had  no  actual  knowledge 
before  so  paying  them,  that  there  were  any  such  claimants.  State 
V.  Salem  Pleas,  5  Halst.  319;  Stebhins  v.  Walker.  2  Green  90,  98: 
and,  in  this  respect,  the  statute  has  made  a  different  rule.  On 
ordinary  process  the  sheriff  is  not  bound  to  search  the  records,  to 


142  Mechanics  Lien  Law. 

see  if  there  are  other  claimants  having  a  lien  upon  the  property 
upon  which  he  levies  and  Avhich  he  sells.  If  there  are  such  claim- 
ants they;  must  give  him  notice,  in  order  to  protect  themselves. 
But  when  he  sells  under  a  special  fieri  facias  on  a  lien  claim,  the 
statute,  as  we  apprehend  it,  requires  him  to  take  notice  of  all  lien 
claims  that  are  of  record,  if  he  chooses  to  pay  over  the  proceeds 
out  of  court;  and  precludes  him  from  setting  up  any  such  dispo- 
sition thereof,  as  against  any  such  claim  which  he  may  have  over- 
looked. 

It  is  obvious  that  it  is  advisable  for  claimant-s  to  take  care  that 
the  sheriff  does  have  actual  notice  of  their  liens;  and  this  is  not 
only  advisable  but  necessary  in  the  case  of  mortgagees  and  judg- 
ment creditors  of  the  owner,  whose  encumbrances  are  subsequent 
to  lien  claims.  These  encumbrancers  are  clearly  entitled  to  any 
surplus  proceeds  aft«r  the  lien  claims  are  satisfied;  but  the  sheriff 
is  not,  we  think,  bound  to  take  notice  of  them,  as  he  is  of  lien 
claims. 

ORDER  OF  DISTRIBUTION,  PRACTICE.  We  think  that 
the  owner  or  any  lien  claimant,  or  other  subsequent  encumbrancer, 
can  apply  for  an  order  to  distribute  the  proceeds.  A  petition 
should  be  presented  and  filed,  setting  forth  all  the  necessary  facts 
in  regard  to  the  fund  to  be  distributed,  the  names  of  the  claimants, 
and  their  respective  claims,  etc.  In  Hall  v.  Spaulding,  11  Vroom 
166,  upon  such  a  petition,  a  reference  was  ordered  to  ascertain  and 
report  the  amount  of  the  several  claims  and  the  persons  to  whom 
due.  In  Crouse  v.  Lewis,  30  Vroom  288,  as  far  as  the  circuit  files 
show,  an  order  of  distribution  appears  to  have  been  made,  with 
nothing  but  a  verified  petition  before  the  judge,  together  with 
proof  that  the  claimants  therein  named  had  been  served  with 
notice,  that  application  would  be  made  for  an  order  for  distribu- 
tion "between  the  several  lien  claimants  who  have  filed  'claims 
against  said  premises." 

We  apprehend  that  it  is  open  to  any  claimant,  on  the  application 
to  order  distribution,  to  litigate  the  merits  of  any  other  claim, 
which  has  not  been  established  by  a  judgment;  even  although  it 
may  have  been  on  file  for  three  months,  and  although  no  caveat 
is  filed  against  it  before  the  petition  comes  in.  Before,  therefore, 
an  order  is  made,  there  should  be  due  proof  that  all  the  persons 
entitled  to  be  heard  have  had  notice  and  an  opportunity  to  offer 
proofs.  The  order,  when  made,  is  reviewable  on  error,  Hall  v. 
Spaulding,  supra;  Crouse  v.  Lewis,  supra;  and  on  such  proceeding 
to  review,  all  persons  interested  must  be  made  parties ;  and  where 
one  party  brings  the  writ,  he  should  issue  it  in  the  name  of  all 
the  claimants,  and  then  proceed  by  summons  and  severance. 
Crouse  v.  Lewis,  supra. 

3.  JUDGMENT  ON  CONCURRENT  LINES.  There  is 
nothing,  in  this  section,  to  prevent  all  of  several  claimants  from 
obtaining  special  judgments,  on  their  claims,  although  the  next 
section  provides  that  the  claimant  who  first  issues  a  summons  may 
obtain  an  order  of  the  court  to  stay  subsequent  suits  until  judg- 
ment in  the  first  suit  is  obtained,  under  certain  circumstances. 


Revision  of  1898,  §  31. 


143 


But  it  is  probably  illegal  to  issue  execution,  on  any  of  the  sub- 
sequent judgments,  so  obtained  after  the  property  has  been  sold, 
under  an  execution  issued  on  the  prior  judgTuent;  but  where  one 
lien  claimant  obtained  a  special  judgment,  under  which  the  premi- 
ses were  sold,  and  subsequently  another  lien  claimant  took  a  special 
judgment  and  had  a  fieri  facias  issued  and  levied,  on  the  same 
property,  and  the  purchaser,  under  the  first  judgment,  then  moved 
the  court  to  set  aside  the  subsequent  fieri  facias,  the  court  declined 
to  take  that  action  apparently  on  the  ground  that  the  purchaser 
had  an  adequate  remedy  by  ejectment,  if  he  was  disseized,  or  by 
suit  to  quiet  title,  if  he  was  not,  and  that  the  rights  of  parties 
ought  to  be  left  to  such  action  and  not  decided'  in  a  sunimary  way. 
It  was  also  intimated  that  the  purchaser  might  be  entitled  to  the 
aid  of  the  Court  of  Chancery  to  restrain  the  sale,  under  such  fieri 
facias.     Murphy  v.  Borden,  20  Vroom  527. 

Stay   of  subsequent  suits    until    determination    of  first 
suit. 

30.  Where  a  summons  has  been  issued  and  served  in  any 
way  prescribed  by  this  act.,  to  enforce  any  building  claim 
lien  against  any  building  and  lands,  all  other  suits  com- 
menced by  summons  subsequently  issued,  to  enforce  con- 
current liens  against  the  same  building  and  lands,  may  be 
stayed  by  the  claimant  therein,  or  by  order  of  the  court, 
until  judgment  in  such  first  suit,  unless  notice  to  enforce 
such  other  claim  has  been  sensed,  or  a  caveat  has  been  filed 
against  paying  the  same,  as  hereinbefore  provided. 

1898,  p.  538,  §  30;  1853,  p.  ^37,  §  16;  Rev.  1874,  §  25. 

This  section  is  the  same  as  when  originally  enacted  in  1853  and 
re-enacted  in  the  Revision  of  1874. 
See  note  to  §  29. 

Discharge  of  lien  by,  1.  Payment  to  claimant;  receipt, 
etc.  2.  Payment  to  county  clerk.  3.  By  expiration  of  time. 
4.  By  failure  to  sue  on  30  days'  notice ;  afladavit.  5.  By 
order  of  circuit  judge. 

31.  Such  land  and  building  may  be  discharged  from 
any  lien  created  by  this  act: 

1.  By  payment  and  receipt  therefor,  given  by  such  claim- 
ant, which,  wlien  the  same  is  executed  in  the  presence  of, 
and  is  attested  by  any  officer  entitled  to  take  the  acknowledg- 
edgment  of  the  execution  of  a  deed,  or  when  acknowledged 
or  proved  before  such  officer,  shall  be  filed  by  such  clerk,  and 


144  Mechanics  Lien  Law. 

the  words  ''discharged  by  receipt"  shall  be  entered  by  him 
in  said  lien  docket,  opposite  the  entry  of  said  lien ; 

II.  By  paying  to  said  county  clerk  the  amount  of  said 
claim  (with  interest  and  costs)  ;  which  amount  said  clerk 
shall  pay  over  to  said  claimant ; 

III.  By  the  expiration  of  the  time  limited  for  issuing 
a  summons  on  such  lien  claim,  without  any  summons  being 
issued,  or  without  notice  thereof  endorsed  on  said  claim ; 

IV.  By  filing  an  affidavit  that  a  notice  from  the  owner 
tO'  the  claimant,  requiring  such  claimant  to  commence  suit 
to  enforce  such  lien  in  thirty  days  from  the  service  of  such 
notice;  and  the  lapse  of  thirty  days  after  such  service  with- 
out such  suit  being  commenced,  or  without  any  entry  of  the 
time  of  issuing  such  summons  being  made  on  such  claim ; 

V.  When  it  shall  be  made  to  appear  by  affidavit  or  other- 
wise, to  the  satisfaction  of  the  justice  of  the  supreme  court 
holding  the  circuit  court  in  the  county  wherein  said  lien  is 
filed,  that  said  lien  has  been  duly  paid  and  satisfied,  and  that 
the  claimant  under  said  lien,  and  his  attorney,  have  died  or 
removed  from  this  state  since  the  filing  of  said  lien,  and  said 
lien  still  remains  on  record  as  unsatisfied,  the  judge  of  said 
court  shall  have  power  to  forthwith  order  the  clerk  of  said 
court  to  enter  a  discharge  of  said  lien  in  said  lien  docket, 
opposite  the  entry  of  said  lien.^ 

1898,  p.  5S8,  §  SI;    185S,  p.  J,S7,  §  13;    Rev.  1874, 
§  26;  1896,  p.  103. 

Clause  V.  was  added  by  the  act  of  1896  p.  103;  the  words, — 
"with  interest  and  costs,"  in  clause  II,  were  inserted  tirst  in  the 
Kevision  of  1898;  except  for  these  two  changes,  the  section  is  the 
same  as  when  originally  enacted  in  1853,  and  re-enacted  in  the 
Revision  of  1874. 

1.  The  act,  in  relation  to  quieting  titles,  applies  to  the  case 
of  a  lien  claim;  and  a  lien  claimant,  who  does  not  file  his  claim 
before  a  foreclosure  suit  is  begun,  and  who  does  not  apply  to  be 
made  a  party  therein,  is  barred  of  his  claim  by  the  foreclosure 
decree.     Raymond  v.  Post,  10  C.  E.  Gr.  447. 

When  a  person  executes  a  release  of  his  right  of  lien,  and 
another  upon  the  faith  of  such  release  takes  a  mortgage,  the 
release  will  be  held  to  cover  the  entire  claim  of  such  releasor  for 
items  subsequent,  as  well  as  prior  to  such  release.  Manhattan 
Assn.  V.  Massarelli.  42  Atl.  284. 


REvisioif  OF  1898,  §  33.  145 

DiBohargre  of  lien  by  deposit  -with  county  clerk  and 
notice  to  retain  until  claim  be  established.  Repayment 
of  such  deposit  or  surplus,  thereof. 

32.  Any  landowner  desiring  to  contest  any  claim,  and 
to  free  bis  building  and  land  from  tbe  lien  tbereof,  may 
pay  to  the  county  clerk  tbe  amount  of  such  claim,  with  inter- 
est tliereon,  for  six  months  after  such  payment,  and  twenty- 
five  dollars  in  addition  thereto,  Avitb  notice  to  said  clerk  not 
to  pay  over  the  same  until  such  claim  be  established  by  suit ; 
which  sum,  or  so  much  thereof  as  is  necessary,  shall  1k^  paid 
to  such  claimant  upon  his  obtaining-  judgment  against  such 
building  and  lauds,  in  the  manner  prescribed  by  this  act, 
and  said  claim  shall  from  the  payment  of  such  money  to 
such  clerk,  be  a  lien  on  said  money,  and  said  buildings  and 
lands  shall  be  discharged  therefrom,  and  no  execution  shall 
issue  against  the  same  by  virtue  of  such  judgment ;  but  if 
such  suit  is  not  commenced  within  the  time  at  which  the  said 
lands  would  be  discharged  by  the  provisions  of  this  act  with- 
out suit,  or  in  case  judgment  be  given  therein  without  being 
against  said  lands,  said  sum  shall  be  repaid  to  him  by  said 
clerk,  and  if  judgiiient  be  given  against  such  lands  for  an 
amount  less  than  that  so  deposited,  then  the  surplus  shall  be 
returned  bv  said  clerk  to  said  landowner. 

1898,  p.  5S8,  §  82;  185S,  p.  ^77,  §  15;  Rev.  1874,  §  27, 

This  section  is  the  same  as  when  originally  enacted  in  1853  and 
re-enacted  in  the  Revision  of  1874. 

General  repeal  of  other  acts. 

33.  The  act  entitled  ''An  act  to  secure  to  mechanics  and 
others  pa^Tuent  for  their  labor  and  materials  in  erecting 
any  building  (Revision),  approved  March  27th,  one  thou- 
sand eight  hundred  and  seventy-four,  and  all  acts  amenda- 
tory thereof  and  supplemental  thereto,  except  so  far  as  incor- 
porated herein  and  re-enacted  herein,  are  hereby  repealed; 
and  all  acts  and  parts  of  acts,  general  and  special,  inconsistent 
with  this  act,  are  hereby  repealed :  but  this  repealer  shall  not 
revive  any  act  heretofore  repealed. 

1898,  p.  5S8,  §  33. 
10 


146  Mechanics  Lien  Law. 

Rights  vested  under  prior  statutes  saved.     Practice  or 
procedure  to  follow  this  act. 

34.  The  repeal  of  any  statutory  provision  by  this  act  shall 
not  affect  or  impair  any  act  done  or  right  vested  or  accrued 
or  any  building  lien  filed  or  any  proceeding,  suit  or  prosecu- 
tion commenced  before  such  repeal  take  effect ;  but  every  such 
act  done  or  right  vested  or  accrued  or  building  lien  filed,  or 
proceeding,  suit  or  prosecution  had  or  commenced,  shall 
remain  in  full  force  and  effect  to  all  intents  and  purposes, 
as  if  such  statutory  provision  so  repealed  had  remained  in 
force,  except  that  where  the  course  of  practice  or  procedure 
for  the  enforcement  of  such  right  or  such  building  lien  or  pro- 
ceeding, suit  or  prosecution  shall  be  changed,  all  suits  pend- 
ing or  thereafter  commenced  shall  be  conducted  as  near  as 
may  be  in  accordance  with  such  altered  practice  or  procedure. 

1898,  p.  538,  §  34. 
See  Barnahy  v.  Bradley  &  Currier  Co.,  31  Vroom  158  (E.  &  A.) 

Construction  of  Terms.  Singular  number ;  masculine 
gender,  bodies  corporate. 

35.  Whenever  in  describe'. g  or  referring  to  any  person, 
party,  matter  or  thing,  any  word  imiDorting  the  singular 
number  or  masculine  gender  is  used  in  this  act,  the  same 
shall  be  und(>rstood  to  include,  and  shall  apply  to,  several 
persons  and  parties  as  well  as  one  person  or  party,  and 
females  as  well  as  males,  and  bodies  corporate  as  well  as  indi- 
viduals, and  several  matters  and  things  as  well  as  one  matter 
or  thing,  unless  it  be  otherwise  provided,  or  there  be  some- 
thing in  the  subject  or  context  repugnant  to  such  construction. 

1898,  p.  538,  §  35. 


CHi^F^TER  III. 


The": Municipal  Improvements  Lien  Act  of  1892. 

(147) 


THE  MUNICIPAL  IMPROVEMENTS  LIEN 

ACT  OF  1892. 


The  legislature  of  New  Jersey  in  1891  passed  an  act 
€<ntitled,  "An  act  to  secure  the  payment  of  laborers,  mechan- 
ics, merchants,  traders  and  persons  employed  upon,  or  fur- 
nishing, materials  toward  the  performing  of  any  work  m 
public  improvement  in  cities  in  this  state."  Acts  of  1891-, 
p.  418,  §§  1-15,  approved  April  14,  1891. 

In  1892  the  legislature  passed  an  act  entitled,  "An  act  to 
secure  the  payment  of  laborers,  mechanics,  merchants,  trad- 
ers, and  persons  employed  upon,  or  furnishing  materials 
toward  the  performing  of  any  work  in  public  improvements 
in  cities,  towns,  townships  and  other  municipalities  in  this 
state."  Acts  of  1892,  p.  369,  §§  1-15,  approved  March  30, 
.1892. 

This  later  act  was  substantially  the  same  as  the  act  of 
1891,  with  such  changes  as  were  necessary  to  make  its  provi- 
sions applicable  to  all  municipalities  generally,  and  repealed 
■  the  earlier  act  so  far  as  it  was  inconsistent  with  its  provisions. 

Both  these  acts,  as  was  pointed  out  in  Delafield  Co^.  i\ 
Say  re,  31  Vroom  449,  were  copied  from  the  New  York 
statute  of  1878,  c.  315,  in  nearly  the  same  words.  In  that 
case  actions  at  law  had  been  brought  in  the  Es^x  Circuit 
Court  to  enforce  liens  claimed  under  this  statute.  The  juris- 
diction thus  invoked  was  challenged,  and  on  error,  in  the 
Court  of  Errors  and  Appeals  it  was  detennined  that  such 
actions  could  not  be  brought  at  law,  but  must  be  instituted 
in  the  Court  of  Chancery.  The  opinion  (by  Justice  Dixon) 
is  so  valuable  a  review  of  the  provisions  of  the  act  that  the 
following  liberal  quotations  are  here  made  from  it : 

"On  examining  the  statute  it  is  perceived  that,  while  it 
provides  for  a  civil  action,  it  does  not,  in  explicit  terms, 
declare  where  that  action  shall  be  brought,  nor  do  the  names 
used  ill  relation  to  the  procedure  indicate  the  appropriate 
tribunal,  for,  while  some  of  them,  e.  g.,  summons,  judgment, 
(149) 


150  Mechanics  Lien  Law. 

point  to  courts  of  law,  others,  e.  g.,  answer,  appeal,  point  to 
the  Court  of  Chancery.  The  enactment  that,  when  separate 
actions  are  commenced,  the  court  in  which  the  first  action  is 
brought  may  consolidate  them,  is  more  significant,  because  it 
suggests  the  possibility  of  suits  being  instituted  in  several 
courts,  and  in  this  state  there  is  but  one  Court  of  Chancery. 
But  since  there  is  in  our  law  no  mode  provided  for  consoli- 
dating actions  pending  in  different  tribunals,  this  enactment 
is  futile,  and  should  not  be  deemed  of  controlling  force  as  an 
indication  of  the  legislative  purpose  with  regard  to  the  court 
whose  jurisdiction  was  to  be  invoked.  It  is  only  a  circum- 
stance to  be  considered  in  the  inquiry.  It  loses  some  of  the 
force  to  which  it  otherwise  might  be  entitled  when  we  dis- 
cover that  our  act  is  copied  almost  verbatim  from  a  statute 
of  I^ew  York,  where  there  is  no  Court  of  Chancery,  and 
where  legal  and  equitable  remedies  are  administered  by  the 

same  tribunals. it    appears    in   our   statute 

merely  because  the  copyist  lacked  either  the  knowledge  or 
the  forethought  needed  to  suggest  terms  adapted  to  our  judi- 
■cial  system. 

"The  safest  guide is  to  be  found  by  considering 

the  nature  of  the  rieht  and  the  main  features  of  the  remedy* 
proposed. 

""The  right  is  one  granted  to  those  who  perform  labor  or 
furnish  materials  in  the  making  of  a  public  improvement  in 
any  of  the  municipalities  of  this  state,  and  it  consists  of  a 
lien  upon  the  money  in  the  control  of  the  municipality  due 
or  to  grow  due  for  such  improvement,  to  the  contractor  who 
owes  for  such  labor  or  materials.  After  the  claimant  has 
perfected  his  lien  by  filing  due  notice  of  his  claim  with  the 
proper  officers  of  the  municipality,  he  is  to  enforce  it  by  a 
civil  action,  in  which  the  municipality,  the  contractor,  and  all 
persons  who  may  in  like  manner  have  secured  liens  on  the 
same  fund,  are  to  be  made  defendants,  and  in  that  action  the 
court  is  to  determine  the  validity  of  each  lien  claim,  the 
amount  due  upon  it,  and  the  amount  due  to  the  contractor 
from  the  municipality,  and  is  to  render  judgment  directing 
the  municipality  to  pay  over  to  the  several  lienors  the  sums 
found  to  be  due  to  them  respectively,  so  far  as  the  fund  will 
go,  and  according  to  the  priority  prescribed  by  the  act.  The 
statute  also  authorizes  the  contractor  or  the  municipality  to 
institute  a  similar  action  for  the  determination  of  the  claims, 


Municipal  Improvements  Act  of  1892.  151 

bringing  before  the  court  all  |>ersons  interested  in  the  dispo- 
sition of  the  fund.  There  is  no  provision  for  a  personal 
judgment  against  the  contractor  as  a  debtor,  but  the  right 
of  the  claimants  to  obtain  such  judgments  against  him  in 
other  actions  is  expressly  presented. 

"Such  suits  as  this  statute  contemplates  are  unknown  to 
the  common  law.  There  is  a  slight  resemblance  between 
them  and  proceedings  by  attachment^  and  to  enforce  the  statu- 
tory lien  of  mechanics  and  materialmen  against  real  estate, 
but  these  proceedings  are  much  simpler  and  are  brought  in 
the  legal  tribunals  by  express  direction  of  the  legislature. 

"On  the  other  hand,  the  remedy  now  under  consideration 
comes  completely  within  the  ordinary  remedial  functions  of 
the  Court  of  Chancerv  (citing  and  quoting  from  1  Pom.  Eq. 
Jur.  95)." 

The  following  table  of  cases  which  have  arisen  under  this  act 
may  be  found  useful.     They  are  arranged  in  chronological  order: 

Trenton  Comrs.  v.  Fell,  7  Dick.  689 ;  s.  e.  29  Atl.  816 ; 

DeUfield  Co.  v.  Sayre.  31  Vroom  449;  s.  c.  38  Atl.  666; 

Camden  Wks.  v.  Camden.  15  Dick.  211;  s.  c.  47  Atl.  220;  s.  c. 
on  app.  19  Dick.  723 ;  52  Atl.  477 ; 

Garrison  v.  Borio,  16  Dick.  236;  s.  c.  47  Atl.  1060; 

Norton  v.  Sinl-hom,  16  Dick.  508;  s.  c.  48  Atl.  822;  s.  c.  on 
app.  18  Dick.  313;  50  Atl.  506. 

Hall  V.  Jersey  City,  17  Dick.  489;  s.  c.  50  Atl.  603;  s.  c.  on  app. 
19  Dick.  766;  53  Atl.  481. 

Kelaher  v.  English,  17  Dick.  675;  s.  e.  50  Atl.  902; 

Gatretson  v.  Clark,  57  Atl.  414. 

Pierson  v.  Haddonfield,  21  Dick.  180 ;  s.  c.  57  Atl.  471 ; 

Wilson  V.  Dietrich,  59  Atl.  250; 

Roselle  Park  v.  Montgomery,  60  Atl.  954; 

Somers  Co.  v.  Souders,  4  Kob.  388;  s.  c.  61  Atl.  840;  s.  c.  on 
app.  70  Atl.  158 ;  1  Buch.  759 ; 

Herman  &  Grace  v.  Essex  Co.  Comrs.,  64  Atl.  742;  1  Buch.  541; 
aff.  June  term,  1907;  3  Buch.  415,  416,  417;  75  Atl.  1101; 

United  States  Co.  v.  Newark.  66  Atl.  904; 

Arzonico  v.  West  New  York,  69  Atl.  450; 

Union  Stone  Co.  v.  Hudson  Co.,  1  Buch.  657;  65  Atl.  466. 

National  Fire  Proof g.  Co.  v.  Daly,  74  Atl.  152; 

United  States  Co.  v.  Newark,  74  Atl.  192; 

Hazard  v.  Bd.  of  Ed..  75  Atl.  237; 

The  text  of  this  act  of  1892,  with  notes  of  decisions,  in 
cases  arising  under  its  provisions,  is  presented  herewith. 


152  Mechanics  Lien  Law, 

Lien  given  upon  the  contract  price,  to  persons  furnish- 
ing labor  or  materials  for  any  public  improvement. 

Section  1.  Be  it  exacted  hy  the  Senate  and  General 
/\  AssemUy  of  the  State  of  Neiv  Jersey,  That  any  person  or 
.A  \  persons  who  shall  hereafter  as  laborer,  mechanic,  merchant 
^\  or  trader,^  in  pursuance  of,  or  in  confonnity  with  the  terms 
of  any  contract  for  any  public  improvement  made  between 
any  person  or  persons  and  any  city,  town,  township  or  other 
municipality^  in  this  state  authorized  by  law  to  make  con- 
tracts for  the  making  of  any  public  improvement,  perform 
any  labor  or  furnish  any  material  toward  the  performance 
or  completion  of  any  such  contract  made  with  said  city,  town, 
township  or  other  municipality,  on  complying  with  the  pro- 
visions of  this  act,  shall  have  a  \ien  for  the  value  of  such  labor 
or  materials  or  either,  upon  the  moneys  in  tlie  control  of  the 
said  city,  town,  township  or  other  municipality,  due  or  to 
grow  due  under  said  contract  witli  said  city,  town,  township 
or  other  municipality,  to  the  full  value  of  such  claim  or 
demand,  and  these  liens  may  be  filed  and  become  an  absolute 
lien  to  the  full  and  par  value  of  all  sucli  Avork  and  materials, 
to  the  extent  of  the  amount  due  or  to  gTOW  due  under  said 
contract,  in  favor  of  every  person  or  persons  who  shall  be 
employed  or  furnish  materials  to  the  person  or  jDersons  with 
whom  the  said  contract  with  said  city,  town,  tow^iship  or 
other  municipalitiy  is  made,  or  the  sub-contractor  of  said 
person  or  persons,^  their  assigns  or  legal  representatives; 
provided,  that  liens  may  he  filed  o-rdy  try  such  laborers, 
mechanics,  merchants  or  traders  as  s;hall  hare  performed  any 
labw  or  furnished  any  material  toward  the  performance  or 
coTtipletion  of  any  such  contract  directly  for  or  to  the  person 
or  persons,  with  ivhom  the  said  contract  u-ith  said  city  or 
m^unicipality  is  made,  or  the  sub-contractor  of  said  person  or 
persons,  their  assigns  or  representatives,  and  no  lien  shall  or 
may  he  filed  on  hehalf  of  any  laborer,  mechanic,  merchant  or 
trader,  for  labor  performed  or  material  furnished  to  any 
other  person  that  the  said  contractor  with  the  said  municipal- 
ity or  a,  sub-contractor  on  any  such  coniraet,  notwithstanding 
such  matenal  may  have  been  actually  used  in  the  perform- 
ance of  the  said  contract;  prorided,  further,  that  no  city, 
toMTi,  township  or  other  municipality  shall  be  required  to 
pay  a  greater  amount  than  the  contract  price  or  value  of  the 


MuNicn'Ai.  Impkovements  Act  of  1892,  §  1.       153 

work  and  materials  furnished,  when  no  specific  contract  is 
made  in  the  performance  of  said  work  by  the  contractor.^ 

The  foregoing  is  the  text  of  section  1,  as  amended  by  the 
act  of  1909,  p.  260.  The  changes  made  by  the  amendment,  con- 
sisted in  the  insei-tion  of  the  italicized  word,  provisions,  in  place 
of  the  former  reading,  second  section,  and  the  new  addition  of 
the  other  words  which  are  above  italicized. 

1.  A  MANUFACTUKER  OF  IRON  who  furnishes  ixon  pipes 
to  a  contractor  building  a  city  water  works  is,  within  the  terms 
of  the  statute,  a  mechanic,  merchant  or  trader  employed  on  or 
furnishing  materials  for  a  public  improvement.  Camden  Wks. 
V.  Camden,  15  Dick.  211 ;  19  Id.  723. 

2.  THE  WORDS,  "OTHER  IVHTNICIPALITY,"  include  a 
county.  Garrison  v.  Bono,  16  Dick.  236;  Norton  v.  Sinl-horn, 
16  Dick.  508;  18  Id.  313;  Union  Co.  v.  Hudson  Co..  1  Buch.  657; 
Herman  v.  Essex  Co.,  64  Atl.  742;  also  a  school  district,  Comrs. 
V.  Fell,  7  Dick.  689. 

3.  As  the  act  originally  read,  it  was  held  that  the  lien  given 
was  not  limited  to  claimants  who  furnished  labor  or  materials 
directly  to  the  original  contractor  or  his  assigns,  but  extended 
also  to  claimants  who  could  show  that  their  labor  or  materials 
were  furnished  for,  and  used  in,  the  improvement,  although  such 
claimant  were  not  a  creditor  of  the  original  contractor  or  even 
of  his  sub-contractor.  This  construction  was  first  given  by  Vice 
Chancellor  Grey  in  the  case  of  Garrison  v.  Borio,  16  Dick,  236, 
and  was  followed,  in  the  Court  of  Chancei-y,  in  the  subsequent 
cases  of  Wilson  v.  Dietrich,  59  Atl.  250  (Grey) ;  Herman  &  Grace 
Co  V.  Essex  Comrs.,  64  Atl.  742  (Emery) ;  National,  etc.,  Co  v. 
Daly  74  Atl.  152  (Stevens)  ;  and  Hazard  v.  Bd.  of  Ed.,  75  Atl. 
237  (Howell).  In  Hall  v.  Jersey  City,  19  Dick.  766,  the  Court  of 
Errors  and  Appeals  had  repudiated  a  dictum  of  Vice  Chancellor 
Pitney's  in  that  case,  17  Dick.  489,  which  might  have  been  taken 
as  asserting  the  same  view,  and  had  intimated  plainly  that  they 
deemed  the  true  construction  of  the  statute  to  be  that  the  lien  of 
claimants  must  be  limited  to  such  only  as  were  creditors  of  the 
original  contractor.  There  were  very  cogent  reasons,  we  think, 
which  should  have  led  that  court  to  adhere  to  the  consti-uction 
that  it  thus  intimated  its  approval  of;  but  when  the  Herman  and 
Grace  case  came  before  it  on  appeal  the  decision  was  affirmed, 
though  without  opinion  (June  term,  1907,  see  Arzomco  v.  West 
New  York  46  Vroojn  21;  and  see  also  Herm<in  &  Grace  v.  Essex 
Co.,  3  Buch.  415;  Same  v.  Same,  3  Buch.  416;  Same  v.  Say  ward, 
3  Buch.  417),  and  the  construction  given  m  Garrison  v.  Bono, 
was   thus   approved. 

By  the  amendment  of  April  19.  1909,  the  legislature  has  now, 
apparently,  enacted  that  the  lien  given  extends  to  all  creditors  ot 
the  original  contractor,  or  of  his  sub-contractor,  or  of  their  re- 


154  Mechanics  Lien  Law. 

spective  assigns  or  representatives,  but  not  to  any  claimant  who 
is  not  such  a  creditor. 

It  was  held  in  Garrison  v.  Borio,  that  the  language  of  the  fifth 
section  limits  the  right  of  a  claimant,  who  is  a  creditor  of  a 
sub-contractor,  to  the  amount  due  from  the  contractor  to  such 
sub-contractor  at  the  time  the  claimant's  notices  of  claim  are 
filed.  If,  at  that  time,  the  contractor  has  wholly  discharged  his 
debt  to  his  sub-contractor,  the  claimant  can  have  no  lien;  if  he 
has  discharged  such  debt  in  part,  the  claimant  can  have  a  lien 
upon  the  fund  to  the  extent  only  of  the  unpaid  balance  due  from 
the  contractor  to  his  sub-contractor.  See  also  Meurer  v.  Kilgus, 
75  Atl.  899  (Ch.). 

THE  LIEN  GIVEN  DOES  NOT  EXCLUDE  THE  CLAIM- 
ANT'S EIGHT,  IN  A  PROPER  CASE,  TO  PROCEED  UN- 
DER §  3  of  the  mechanic's  lien  act  by  notice,  etc.  Arzonico  v. 
West  A^./y  Ynrh.  fiP  Atl  /^Th  Delafield  v.  Sayre,  31  Vroom  449; 
Camden  v.  Camden,  47  Atr220;  Garrison  v.  Bo-rio.  47  Atl.  1060; 
Norton  V.  Sinkhorn,  48  Atl.  822;  s.  c,  50  Atl.  506;  Hall  v. 
Jersey  City,  50  Atl.  603;    Kelaher  v.  English,  50  Atl.  902. 

4.  It  is  difficult  to  read  this  PROVISO  to  any  certain  intent. 
The  conjecture  is  hazarded  that  it  intends  to  say  that  when  the 
contract,  between  a  claimant  and  the  municipal  contractor,  for 
work  or  materials  supplied  the  latter,  and  by  him  used  in  the 
performance  of  his  contract  with  the  municipality  fails  to  si)ecify 
the  price  to  be  paid  therefor,  the  fund'  shall  be  liable  to  such  claim- 
ant for  such  work  or  materials  at  no  greater  rate  than  that  fixed 
by  the  municipality's  contract  as  the  rate  by  which  its  contractor 
is  to  be  paid  therefor.  As  some  time  has  been  spent  in  puzzling 
over  it,  this  note  is  given  for  what  it  may  be  worth. 

We  venture  the  comment  that  the  legislature  in  the  amend- 
atory legislation  of  1909  would  have  been  wiser,  if  they  had 
reworded  this  proviso  so  as  to  make  it  intelligible,  and  if  they 
had  limited  the  lien  given  to  such  claimants  as  are  creditors  of 
the  original  contractor  only. 

Notices  of  claim  when  to  be  filed,  and  where.  Con- 
tents of  such  notice,  and  verification  thereof 

Sec.  2.  And  &e  it  enacted,  That  at  any  time  before  the 
whole  work  to  be  performed  by  the  contractor  for  any  such 
city,  town,  township  or  other  municipality  is  completed  or 
accepted  by  said  city,  toAAii,  township  or  other  mimicipality, 
and  within  fifteen  days  after  the  same  is  so  compTeted  or 
accepted,^  any  claimant  may  file  with  the  chairman  or  head 
of  the  department,  council,  Iward,  bureau  or  commission 
laving  charge  of  said  work,  and  with  the  financial  officer^  of 
said  city,  town,  township  or  other  municipality,  notices  stat- 
ing the  residence  of  the  claimant,*'^  verified  by  his  oath  or 


Municipal  Improvements  Act  of  1892,  §  2.       155 

affirmation,  stating  the  amount  claimed,"  from  whom  due,^ 
and  if  not  due,  when  it  will  be  due,*'  giving  the  amount  of 
the  demand'    after  deducting  all  just  credits   and  offsets,^ 
with  the  name  of  the  person  by  whom  employed,  or  to  whom 
the  materials  were  furnished^  ;  also  a  statement  of  the  terms, 
time  given,  conditions  of  his  contract,^"   and  also  that  the 
labor  was  performed  or  materials  were  furnished  to  the  said 
contractor,^  ^  and  were  actually  performed  or  used  in  the  exe- 
cution and  completion  of  the  said  contract  with  said  city, 
town,  to\mship  or  other  municipality,^  ^  but  no  variance  as 
to  name  of  the  contractor  shall  affect  the  validity  of  the  said 
claim  or  lien ;  pi-omded,  however,  that  the  filing  of  such  notice 
shall  not  operate  as  a  lien  against  such  moneys  as  may  he  due, 
or  to  grow  due,  under  the  said  contract,  unless  the  person  or 
persons  serving  such  iiotice  shall,  at  the  same  time,  file  with 
the  financicd  officer  of  the  said  iminicipality  a  bond  in  a  sum 
to  he  fixed  by  such  financial  officers  not  to  exceied  twenty  per 
centum  of  the  amount  claimed  in  said  notice,  which  said  bond 
shall  be  conditioned  for  the  payment  of  legal  interest  for  the 
time  the  said  nionenjs  may  be  withheld  from  the  said  con- 
tractm^  in  the  edJent  thai  the  said  claimant  does  not  perfect 
his  lien  by  instituting  an  action  or  that  decree  be  made  in 
favor  of  the  said  contractor  in  any  such  action,,  and  cotidu 
timied  further  for  the  payment  of  the  costs  of  any  such  action 
if  judgment  he  for  the  coniractor. 

This  is  the  section  as  amended  by  1909,  p.  260,  §  2,  which  added 
the  proviso  which  we  have  italicized.     See  also  post,  §  15. 

1.  THE  CLAIM  CAN  BE  FILED  before  the  improvement  is 
completed;  and  has  effect  whether  the  contractor  is  proceeding 
with  the  performance,  or  has  abandoned  it.  Pierson  v.  Haddon- 
field,  21  Dick.  180.  . 

The  statute  offers  but  two  periods  during  which  the  notice  ol 
claim  can  be  filed,  viz.:  (1)  before  the  work  is  completed;  and 
(2)  within  fift-een  days  after  it  is  either  accepted  or  completed, 
whichever  comes  first.  Somers  Co.  v.  Souders,  4  Rob.  388;  aff. 
70  Atl.  158 ;  1  Buch.  759. 

2.  The  city  comptroller  is,  par  excellence,  the  FINANCIAL 
OFFICER  upon  whom  notice  should  be  served.  Hall  v.  Jersey 
City,  17  Dick.  489;    19  Id.  766. 

The  district  clerk,  or  the  custodian  of  the  school  moneys  ol  the 
district,  are  either  of  them  the  proper  financial  officer  of  the 
school  district;  but  the  borough  or  township  collector  or  treas- 
urer, as  such,  is  not.     Hazard  r    Bd.  of  Ed.,  75  Atl.  237. 


156  Mechajstics  Lie2«^  Law. 

The  claimant  must  fQe  the  two  notices  required  by  the  statute. 
Hazard  v.  Br.  of  Ed.,  supra. 

3.  The  affidavit  annexed  to  the  notice  of  claim  is  part  of  the 
notice,  and  the  CLAIMANT'S  RESIDENCE  is  sufficiently  stated, 
if  stated  only  in  such  affidavit.  Hall  v.  Jersey  City.  17  Dick. 
489;    19  Id.  766. 

If  the  claimant  is  a  corporation  its  residence  is  sufficiently 
stated  by  stating  the  State  wherein  it  was  incorporated.  Hall 
V.  Jersey  City,  supra;    National,  etc.,  Co.  v.  Daly,  74  Atl.  152. 

The  statute  requires  all  the  particulars,  which  the  notice  must 
set  forth,  to  be  verified  by  the  claimant's  oath;  it  does  not  mean 
that  the  residence  of  the  claimant  is  the  only  fact  which  is  to  be 
thus  verified.     National,  etc.,  Co.  v.  Daly,  supra. 

If  the  affidavit  is  not  a  general  verification  of  the  contents  of 
the  notice  but  merely  asserts  that  the  notice  is  a  true  account  of 
materials  furnished  together  with  dates  and  prices,  it  does  not 
verify  the  terms,  time  given,  and  conditions  of  the  claimant's  con- 
tract, although  those  particulars  are  also  stated  in  the  notice. 
National,  etc.,  Co.  v.  Daly,  supra. 

4.  A  claim  is  wholly  void,  if  it  be  for  a  greater  sum  than  is  in 
fact  due,  when  the  OVER-CLAIM  is  made  with  conscious  fraud, 
on  the  part  of  the  claimant,  Camden  Wks.  v.  Camden,  15  Dick.  211 ; 
19  Id.  723;  and  fraud  will  be  presumed  when  the  claimant  must 
have  known  that  it  was  an  over-claim;  and  the  same  result  may 
be  reached  if  the  over-claim  is  attributable  to  the  claimant's 
gross  carelessness.  Camden  Wks,  v.  Camden,  supra.  But  a  claim 
will  be  good  for  the  real  sum  due,  when  the  over-claim  is  due  to 
excusable  inadvertence,  or  a  justifiable  doubt  as  to  the  legality 
of  the  excessive  portion  of  it.  Camden  Works  v.  Camden,  supra; 
Garrison  v.  Borio,  16  Dick.  236;  Hall  Co.  v.  Jersey  City,  17  Dick. 
489;    19  Id.  766. 

It  is  proper  for  a  claimant  to  include  in  his  notice  of  claim 
items  for  materials  supplied  to  him,  although  such  materialman 
might  also  make  valid  claim  upon  the  fund  therefor.  Hazard  v. 
Bd.  of  Ed.,  75  Atl.  237. 

The  wording  of  the  section  is  very  different  from  the  language 
of  §  3  of  the  Mechanics  Lien  Act,  as  it  stood  prior  to  the  amenda- 
tory act  of  1910,  p.  500,  and  under  which  it  was  held  to  be 
fatal  to  give  notice  for  a  sum  in  excess  of  the  amount  that  proves 
to  be  actually  due  such  claimant.  There  the  words  were:  "When- 
ever any  masterworkman  or  contractor  shall,  upon  demand,  re- 
fuse to  pay  to  any  person,  etc.,  the  money  or  wages  due  to  him,  it 
shaU  be  the  duty  of  such,  etc.,  to  give  notice,  etc.,  of  the  amount 
due  to  him  or  them  and  so  demanded."  Here  there  is  no  require- 
ment that  a  claimant  shall  have  made  demand,  and  met  with  re- 
fusal, before  he  can  give  notice;  it  is  expressly  provided  that 
such  notice  may  be  given  before  the  claimant's  compensation  is 
due  to  him  at  all;  and  it  is  required  that  the  amount  to  be  stated 
in  the  notice  shall  be  the  amount  claimed,  and  not  the  amount 
that  is  actually  due  or  to  grow  due. 


Municipal  Improvements  Act  of  1892,  §  2.       157 

7.  When  the  claimant  holds  an  unmatured  note  for  part  of  his 
claim,  he  sufficiently  states  "THE  AMOUNT  OF  THE  DE- 
MAND after  deducting  all  just  credits,"  by  stating  that  the 
amount  due  is  a  certain  sum  and  that  the  amount  to  grow  due  is 
a  certain  sum  (viz.:  the  amount  of  the  note).  Hall  v.  Jersey  City, 
supra. 

8.  It  is  not  necessary  that  the  notice  shall  use  the  statutory 
words,  "after  deducting  all  just  credits  and  offsets."  Hall  Co.  v. 
Jersey  City,  supra. 

9.  The  notice  sufficiently  states  the  NAME  OF  THE  PERSON 
to  whom  the  materials  were  furnished,  when  it  states  the  name  of 
the  person  who  contracted  with  the  city  and  describes  the  con- 
tract so  as  to  identify  it.  Hall  v.  Jersey  City,  17  Dick.  489.  See 
post,  note  10. 

10.  The  notice  sufficiently  states  the  "TERMS,  TIME  GIVEN, 
and  conditions  of  HIS  contract,"  when  it  gives  the  name  of  the 
city's  contractor  and  describes  the  contract  between  him  and  the 
city,  its  filing,  etc.,  so  as  clearly  to  identify  it,  and  says  that  the 
lien  is  claimed  on  the  money  due  and  to  grow  due  on  that  contract. 
Hall  V.  Jersey  City,  17  Dick.  489.  This  was  Vice  Chancellor 
Pitney's  view,  that  his  contract  means  the  contract  of  the  city's 
contractor  and  not  that  of  the  claimant.  In  the  Court  of  Errors 
and  Appeals,  however,  this  view  was  questioned,  and  some  of  the 
judges  there  thought  that  the  claimant's  contract  was  the  one 
intended.  The  question  was  left  unsettled  as  the  claimant  in  that 
case  furnished  the  materials  upon  a  fixed  scale  of  prices,  but 
upon  orders  given  from  time  to  time;  so  that  there  was  no  con- 
tract entered  into  in  advance  of  the  delivery  of  the  materials,  and 
nothing  which  could  be  stated  under  the  statute,  if  it  did  refer 
to  the  claimant,  in  the  word,  "his."  The  opinion,  however,  cau- 
tions careful  practitioners  to  draw  such   notices,  to  cover  either 

view. 

In  the  recent  case  of  National,  etc.,  Co.  v.  Daly,  74  Atl.  152, 
V.  Ch.  Stevens  adopts,  as  the  more  reasonable,  the  view  that  the 
contract  intended  is  the  claimant's  contract. 

When  the  claimant's  notice  annexes  an  invoice  which  gives 
the  dates,  kind  of  materials  furnished,  and  prices  with  the  words, 
"terms  net  30  days,  goods  f.  o.  b.  New  York,"  it  sufficiently  states 
the  terms,  time  given,  and  conditions  of  claimant's  contract.  Na- 
tional, etc.,  Co.  V.  Daly,  supra. 

No  lien  can  be  claimed  for  materials  which  have  not.  at  the 
date  of  the  notice,  been  actually  used  in  the  improvement,  al- 
though supplied  to  the  contractor  for  that  purpose.  National,  etc.. 
Go.  V.  Daly,  74  Atl.  152;  Hazard  v.  Bd.  of  Ed.,  75  Atl.  237;  but 
a  statement,  that  the  materials  have  been  supplied  on  and  about 
a  school  building  that  has  been  completed,  sufficiently  alleges  that 
they  have  been  actually  used  in  the  completion  of  such  build- 
ing.    National,  etc.,  Co.  v.  Daly,  supra. 


158  Mechanics  Lien  Law. 

Entry  of  notices.    Lien  Book.    Scope  of  Record. 

Sec.  3.  And  be  it  enacted.  That  the  financial  officer  of 
said  city,  town,  township  or  other  municipality  shall  enter  the 
claims  in  a  book  kept  for  that  purpose  by  him,  called  the 
"lien  book;"  such  entry  shall  contain  the  name  and  residence 
of  the  claimant,  the  name  of  the  contractor,  the  amount  and 
date  of  the  filing,  and  a  brief  desigiiatiou  of  the  contract 
upon  which  the  claim  is  made. 

Action  to  enforce  lien.      Limination. 

Sec.  4.  And  he  it  enacted,  That  no  lien  provided  for  in 
this  act  shall  be  binding  upon  the  property  therein  described, 
unless  an  action  be  commenced  within  ninety  days  from  the 
filing  of  the  same,^  and  a  notice  of  pendency  of  said  action 
be  filed  with  the  financial  officer  of  said  city,  tovm,  township 
or  other  municipality. 

The  act  of  1909,  p.  260,  §  3,  says  that  it  amends  this  section, 
but  it  makes  no  change  in  it,  in  fact,  beyond  inserting  a  comma 
after  the    word,    township. 

1.  The  requirement  is  peremptory.  If  suit  be  not  begun  within 
ninety  days  after  the  claim  is  filed,  the  lien  is  lost.  Roselle  Park 
V.  Montgomery,  60  Atl.  954;  Sormrs  Co.  v.  Souders,  4  Rob.  388; 
70  Atl.  158 ;   Hazard  v.  Bd.  of  Ed.,  75  Atl.  237. 

When  lost  by  failure  to  bring  suit,  the  lien  cannot  be  revived 
by  any  act  of  the  municipality,  Roselle  Park  v.  Montgomery; 
Somers  Co.  v.  Souders,  supra. 

Neither  will  a  claim  be  aided  by  the  fact  that  the  solicitor  of 
the  municipality  has  acknowledged  service  of  subpoena.  Hazard 
V.  Bd.  of  Ed.,  supra. 

It  is  not  necessary,  however,  that  each  claimant  give  a  separate 
notice,  it  is  enough  that  any  one  of  the  parties  in  the  suit  give 
actual  notice,  stating  the  character  of  the  suit  and  the  names  of 
the  parties;  and  such  notice  will  avail  for  all  who  are  named  in 
it  as  parties,  although  not  for  any  party  who  is  not  named  in  it. 
NatioiKil,  etc.,  Co.  v.  Daly,  74  Atl.  152;  Hazard  v.  Bd.  of  Ed., 
supra.  As  said  in  the  Daly  case  the  notice  need  not  be  entitled 
in  the  cause,  and  may  be  by  letter,  but  it  must  itself  give  actual 
notice  of  each  claim  that  would  avail  itself  of  its  benefit,  and  not 
merely  put  the  municipality  ui)on  its  enquiry  as  to  the  names  of 
the  parties  claimant. 

Accrual  of  Lien. 

Sec.  5.  And  he  it  enacted.  That  the  lien  shall  attach 
from  the  time  of  filing  thereof^  to  the  extent  of  the  liability 


Municipal  Improvements  Act  of  1892,  §  6.       159 

of  the  contractor  for  the  claim  preferred  upon  any  funds 
which  may  be  due  or  to  grow  due  to  said  contractor  from  said 
city,  town,  township  or  other  municipality  under  the  contract 
against  which  the  lien  is  filed,^  provided,  however,  that  the 
funds  due  or  to  grow  due  to  the  said  contractor  from  said  city, 
town,  township  or  other  municipality  may  he  released  and 
paid  to  the  said  cmdractor  by  the  financial  officer  of  said  city, 
town,  township  or  other  municipality  upon  the  filing  urith 
such  financial  officer  of  a  hond  in  double  the  sunt'  of  all  claims 
filed  under  th^e  provisions  of  this  act  against  the  said  con- 
tractor, or  the  fundiS  due  or  to  grow  due  to  him,  conditioned 
for  the  payment  of  such  sum  or  suins  as  may  be  decreed  to  be 
due  from,  the  said  contractor  under  any  such  claims,  wliich 
bond  shall  be  approved  as  to  form,  by  the  chief  law  officer 
of  such  municipality,  and  as  to  sufficiency  by  the  financial 
officer  with  whom  it  is  filed. 

This  is  the  section  as  amended  by  the  act  of  1909,  p.  260,  §  4, 
which  added  the  proviso  which  we  have  italicized. 

1.  The  claimant  has  no  inchoate  lien  before  he  files  his  notice, 
Somers  Brick  Co.  v.  Souders,  4  Rob.  388;  aff.  70  Atl.  158;  his 
lien  arises  when  he  files  his  claim,  not  when  he  furnishes  the 
labor  or  material.  Somers  v.  Souders,  post;  Garretson  v.  Clark, 
57  Atl.  414;    Pierson  v.  Haddonfield,  21  Dick.  180. 

2.  When  filed,  the  claim  is  a  lien  on  what  is  then  due  the  con- 
tractor and  what  may  thereafter  grow  due.  Pierson  v.  H addon- 
field,  supra. 

"There  is  no  prohibition  in  the  act  against  anticipated  payments, 
no  inchoate  lien  on  the  fund,  and  no  provision  making  the  owner 
who  prepays  liable  to  a  subsequent  claimant.  Somers  Brick  Co. 
V.  Souders,  4  Rob.  388;  aff.  70  Atl.  158. 

A  creditor  of  a  sub-contractor  can  reach  the  fund  only  to  the 
extent  of  the  debt  then  due  from  the  contractor  to  such  sub-con- 
tractor.    See  note  3  to  §  1,  ante. 

Parties  complainant  in  action  to  enforce  lien,  or  to  ter- 
minate same. 

Sec.  6.  A7id  be  it  enacted.  That  any  claimant  who  has  filed 
the  notice  mentioned  in  the  second  section  of  this  act,  may 
enforce  his  claim  against  the  said  fund  therein  designated 
and  against  the  person  or  persons  liable  to  the  debt  by  a 
civil  action,^  actions  to  determine  or  terminate  said  lien? 
may  be  commenced  by  the  contractor  or  said  city,  to^vn,  town- 
ship or  other  municipality  in  any  court  of  competent  juris- 


160  Mechanics  Lien  Law. 

diction.^  //  m  any  such  action  the  c&niractov,  or  other  party 
defendant,  at  any  time  prim-  to  final  heawimj  shall  file  an  affi- 
davit setting  fo7'th  any  matter  or  thing  which  would  he  a  valid 
defense  at  law  on  his  behalf  to  any  suit  wherein  the  said 
claimant  uras  plaintiff,  hut  which  matter  or  thing  cannot  he 
set  up  in  defense  in  such  action,  all  further  proceedings  in 
such  action  shall  thereupon  he  stayed  until  the  determination 
of  the  said  matters  or  things  so  set  out  in  such  affidavit  hy 
a  court  of  law,  and,  unless  the  said  claimant  shall  institute  a 
suit  at  law  within  thirty  days  thereafter  for  the  recovery 
of  the  amiount  of  the  said  claim,  his  hill  shall  he  dismissed 
with  costs.  The  record  of  any  judgment  in  any  such  suit 
at  law,  so  instituted,  7nay  be  set  up  in  the  said  action,  and 
shall  be  conclusive  as  to  so  much  of  the  amount  of  said  lien 
claim  as  may  have  been  at  issue  in  the  said  suit. 

This  is  the  section  as  amended  by  the  act  of  1909,  p.  260,  §  5, 
the  amendment  consists  in  the  addition  of  the  words  which  we 
have  italicized. 

1.  A  bill  to  enforce  a  claim  for  less  than  $50  will  not  be  enter- 
tained.   Kellaher  v.  English,  17  Dick.  675. 

The  claimant's  debt  is  assignable,  and  passes  the  right  of  lien 
to  the  assignee,  together  with  the  right  to  enforce  it.  Hall  v. 
Jersey  City,  17  Dick.  489 ;  19  Id.  766 ;  but  the  assignment  of  his 
claim,  by  a  sub-contractor,  does  not  give  the  assignee  any  lien 
upon  the  fund,  until  the  necessary  notices  of  claim  have  been 
duly  filed,  National  Fire  Proof g  Co.  v.  Daly,  74  Atl.  152.  It  would 
seem  that  the  assignor  must  in  such  a  case  verify  the  notices. 

An  assignment  of  claim  is  good  from  its  date,  and,  as  against 
other  claimants,  it  does  not  need  to  be  perfected  by  notice  given 
the  owner  in  order  to  be  operative.  United  States  Co.  v.  Newarh, 
74  Atl.  192. 

A  negotiable  draft,  not  payable  out  of  any  specific  fund,  can- 
not be  regarded  as  an  equitable  assignment,  pro  tanto,  of  any 
given  fund.     Roselle  Park  v.  Montgomery,  60  Atl..  954. 

The  suit  to  enforce  the  lien  given  by  this  act  must  be  brought 
in  the  Court  of  Chancery.  Delafield  v.  Sayre,  31  Vroom  449. 

A  claimant,  who  is  made  defendant  in  a  suit  brought  by  an- 
other claimant,  need  not  institute  a  separate  suit  upon  his  own 
claim.    National,  etc.,  Co.  v.  Daly,  supra. 

A  claimant,  holding  an  order  for  his  debt,  does  not  waive  his 
rights  thereunder  by  also  filing  his  bill  to  enforce  his  lien.  Som- 
ers  V.  Souders,  70  Atl.  158;  reversing  s,  c,  4  Rob.  388,  as  to  this 
point. 

Taking  an  assignment  from  a  sub-contractor  does  not  prevent 
a  materialman  from  also  claiming  and  enforcing  his  lien  for  such 
materials.  Neither  does  the  contractor's  bankruptcy  avoid  the  lien 
of  claimants.    National,  etc.,  Co.  v.  Daly,  74  Atl.  152. 


Municipal  Improvements  Act  of  1892,  §  8.       161 

2.  There  can  be  no  personal  judgment  given  in  favor  of  the 
contractor  and  against  the  municipality,  in  case  the  fund  exceeds 
all  the  claims.  Norton  v.  Sinhhorn,  18  Dick.  313;  United  States 
Co.  V.  Newark,  66  Atl.  904. 

Parties  defendant;  process;  notices  of  object  of  suit; 
answers;  determination  of  priorities. 

Sec.  7.  And  be  it  enacted,  That  the  plaintiff  must  make 
all  parties  who  have  filed  claims,  the  contractor  and  the  said 
city,  town,  township  or  other  municipality,  parties  defend- 
ant,^ and  as  to  all  parties  against  whom  no  personal  claim 
is  made,  the  plaintiff  may,  with  the  summons,  serve  a  notice 
stating  briefly  the  object  of  the  action,  and  that  no  personal 
claim  is  made ;  but  all  parties  who  have  filed  claims  under 
this  act  may,  by  answer  in  such  action,^  set  forth  the  same, 
and  the  court  in  which  the  action  is  brought  may  decide 
as  to  the  extent,  justice  and  priority  of  the  claims  of  all 
parties  to  the  action.^ 

1.  The  debt  due  from  the  municipality  to  the  contractor  is  at- 
tachable, Roselle  Park  v.  Montgomery,  60  Atl.  954;  and  an  at- 
taching creditor  should  be  made  a  defendant,  to  cut  off  his  rights. 

2.  If  a  claimant  hold  also  an  order  for  his  debt,  and  the  other 
claimants  so  allege,  denying  its  priority,  he  may  assert  its  prior- 
ity in  his  answer,  and  have  it  established  as  prior,  notwithstand- 
ing he  has  not  himself,  in  his  own  bill,  to  enforce  his  lien  under 
his  notice,  set  up  such  order.  Somers  Co.  v.  Souders,  70  Atl.  158; 
reversing  s.  c,  4  Rob.  388,  on  this  point. 

3.  See  the  succeeding  section,  note  3. 

Scope  of  judgment;  Form  of  same ;   Execution;  Appeal 

Sec.  8.  And  he  it  enacted.  That  the  court  in  which  the 
action  is  brought  shall  determine  the  validity  of  the  lien,^ 
the  amount  due  from  tlie  debtor  to  the  contractor  under  his 
contract,^  and  from  the  contractor  to  the  respective  claim- 
ants,"^ and  shall  render  judgment,  directing-  that  the  said  city, 
town,  township  or  other  municipality  shall  pay  over  to  the 
claimants  for  the  work  done  and  the  materials  furnished  in 
the  execution  of  said  contract  or  contracts,  whose  claims  or 
liens  it  shall  hold  to  be  valid  and  just,  in  the  order  of  their 
priority  as  determined  by  said  court  to  the  extent  of  the 
sum  found  due  to  said  claimants  from  the  contractor,  so 
much  of  said  funds  or  monev  wliich  mav  be  due  from  the 
11 


162  Mechanics  Lien  Law. 

said  city,  town,  township  or  other  mimicipalitj  to  the  con- 
tractor, under  his  contract,  against  which  the  lien  is  filed,  as 
will  satisfy  their  liens  or  claims,  with  interest  and  costs,  to 
the  extent  of  the  amount  due  from  said  city,  town,  township 
or  other  municipality  to  said  contractor;"*  the  judgments 
rendered  under  this  act  may  be  enforced  by  execution  and 
an  api>eal  may  be  taken  therefrom  in  the  same  time  and 
manner  as  in  civil  actions. 

3.  The  contractor  cannot  avail  himself  of  any  claim  by  way  of 
SET  OFF  against  any  of  the  lien  claimants;  but  he  may  and 
shovdd,  set  up  any  right  to  reduce  a  claim  that  he  may  have,  even 
for  unliquidated  damages,  if  resulting  from  the  claimant's  fail- 
ure to  perform  obligations  devolving  upon  him  by  the  same  coai- 
tract  on  which  such  claimant  bases  his  own  right.  Norton  v.  SinJc- 
horn  18  Dick.  313,  reversing  s.  c,  16  Dick.  508,  so  far  as  it 
denied  such  right  or  RECOUPMENT,  and  affirming  its  denial 
of  the  right  to  exhibit  a  cross  bill  to  recover  such  damages. 

4  Proceedings  to  enforce  tb  •  liens  given  by  this  act  are  pro- 
ceedings QUASI  IN  REM  ai  d  are  limited  to  ascertaining  the 
rights  of  the  parties  in  respect  of  the  contract  price  and  directing 
payment  thereof  accordingly.     Norton  v.  Sinlchorn,  supra. 

The  statute  contains  no  provision  which  authorizes  the  court  to 
give  a  personal  judgment  against  the  contractor,  as  a  debtor, 
Delafield  Co.  v.  Sayre,  31  Yroom  449;  Garrison  v.  Borw,  16  Dick. 
236;  Norton  v.  Sinlchorn,  supra;  neither  can  there  be  a  personal 
decree  in  favor  of  the  contractor  and  against  the  municipality,  in 
case  the  fund  exceeds  all  the  claims.  Norton  v.  Sinkhorn.  supra; 
United  States  Co.  v.  Newark    m  Atl.  904.  T>yT)jJCV 

If  the  contractor  alleges  m  his  answer  a  RiCxHi  iO  KihUV^tj 
A  CLAIM  because  of  unliquidated  damages  sustained  through 
such  claimant's  default,  the  proceedings  in  the  Court  of  Chan- 
cery will  be  stayed  to  permit  such  damages  to  be  first  ascertained 
at  law.    Norton  v.  Sinlchorn,  supra.  . 

The  court  cannot  compel  the  payment  of  claims,  nor  determine 
their  ascertainment,  until  the  contract  for  the  improvement  is 
completed.    Pierson  v.  Haddonfield.  21  Dick.  180. 

If  the  contractor  ABANDON  the  work  and  his  sureties  com- 
plete it,  the  latter  are  entitled,  by  subrogation,  to  so  much  of  the 
fund  as  will  reimburse  them  for  their  necessary  outlay  in  so 
doing;  and  their  right  is  superior  to  the  right  of  claimants 
who  have  furnished  the  contractor  work  or  materials.  Umon 
Stone  Co.  v.  Hudson  Co.,  1  Buch.  657  (V.  C.  Garrison),  follow- 
ing St.  Peter's  Church  v.  Van  Note,  21  Dick.  Y8;  and  dissenting 
from  Vice  Chancellor  Grey's  view,  in  Pierson  v.  Haddonfield,  21 
Dick.  180;  that  the  rights  of  such  claimants  are  superior  to  those 
of  the  sureties  in  such  a  case. 

Wlien  a  contract  provides  that  if  the  contractor  abandons  the 
work,  the  municipality  may  let  a  new  contract  and  charge  the  ex- 


Municipal  Improvements  Act  of  1892,  §  10.     16^ 

pense  to  the  original  contractor,  the  letting  of  such  new  contract, 
it  is  said,  will,  of  course,  cut  off  the  creditors  of  the  original  con- 
tractor, in  respect  of  any  part  of  the  contract  price  unearned  at 
the  time  of  such  abandonment.  Union  Stone  Go.  v.  Hudson  Co., 
supra;  but  if  the  contractor's  sureties,  upon  such  abandonment, 
take  up  and  complete  the  work,  there  is  no  new  contract  made 
whereby  the  creditors  of  the  contractor  may  be  cut  off,  as  to  such 
unearned  part  of  the  contract  price.  Union  Stone  Co.  v.  Hud- 
son Co. 

The  right  of  the  claimant  is,  of  course,  subject  to  the  superior 
rigEt  of  the  municipality  to  charge  first,  against  the  fund,  the 
cost  of  completing  the  abandoned  work.  Somers  Co.  v.  Souders, 
4  Eob.  388;   70  Atl.  158. 

Laborers  claims  preferred.  Otherwise  priorities  as  per 
date  of  notice  filed.     Determination  of  priorities. 

Sec.  9.  And  be  it  enacted,  That  in  case  of  a  number  of 
liens  in  favor  of  different  persons,  their  rights  and  priorities 
shall  be  determined  as  follows:  persons  standing  in  equal 
degrees  as  co-laborers  or  persons  furnishing  materials  shall 
have  priority  according  to  the  date  of  the  filing  of  their 
liens ;  but  laborers  shall  have  a  lien  prior  to  other  liens,  upon 
filing  their  notices  any  time  before  payments  are  due  and 
made,  when  several  lien  notices  are  filed  for  the  same 
demand,  the  judgment  shall  provide  for  the  proper  payments 
according  to  priority,  so  that  under  liens  filed,  double  pay- 
ments shall  not  be  required. 

Where  there  are  two  claims  filed  at  the  same  time,  and  there 
is  not  money  enough  to  pay  both,  they  take  pro  rata.  Wilson  v. 
Dietrich,  59  Atl.  250. 

Consolidation  of  Actions. 

Sec.  10.  And  he  it  enacted,  That  when  separate  actions 
are  commenced,  the  court  in  which  the  first  action  was 
brought  may  upon  the  application  of  said  city,  town,  town- 
ship or  other  municipality  consolidate  them. 

The  proper  practice  is  thereafter,  on  the  application  of  the 
municipality,  to  have  the  suits  of  all  the  claimants  consolidated. 
Somers  Co.  v,  Souders,  4  Kob.  388;    70  Atl.  158. 


164  Mechain^ics  Lien  Law. 

Costs  discretionary. 

Sec.  11.  And  be  it  enacted.  That  costs  in  all  actions  shall 
rest  in  the  discretion  of  the  conrt  and  shall  be  awarded  to 
or  against  the  plaintiff  or  defendants,  or  any  or  either  of 
them,  as  may  be  just. 

Costs  should  be  given  ag-ainst  any  party  only  when,  and  to  the 
extent  that,  he  has  unsuccessfully  contested  another's  claim,  or 
asserted  his  own.  The  normal  costs  of  the  proceeding  should  be 
paid  out  of  the  fund.  Hall  v.  Jersey  City.  19  Dick.  766;  Rev. 
17  Dick.  489. 

Determination  no  bar  to  personal  action  against  debtor 

Sec.  12.  And  be  it  enacted.  That  nothing  contained  in  this 
act  shall  be  constructed  to  impair  or  affect  the  right  of  any 
person  to  whom  any  debt  may  be  due  for  work  done  or  mate- 
rials furnished,  to  maintain  a  personal  action  to  recover 
such  debt  against  the  person  liable  therefor. 

Claimants  may  obtain  personal  judgments  against  the  con- 
tractor, in  proi>er  actions  at  law,  notwithstanding  suit  has  been 
brought  to  enforce  their  right  of  recourse  against  the  fund.  Dela- 
field  Co.  V.  Sayre,  31  Vroom  419. 

Discharge  of  hen  by  certificate;  lapse  of  time  without 
Buit;    satisfaction  of  judgment. 

Sec.  13.  And  be  it  enacted,  That  the  lien  may  be  dis- 
charged as  follows :  first,  by  filing  a  certificate  of  the  claim- 
ant or  his  successor  in  interest,  duly  acknowledged  and 
proved,  stating  that  the  lien  is  discharged ;  second,  by  lapse 
of  time,  when  ninety  days  have  elapsed  since  the  filing  of 
the  claim  and  no  action  shall  have  been  commenced  to  enforce 
the  claim ;  third,  by  satisfaction  of  any  judgment  that  may 
be  rendered  in  actions  to  foreclose  said  liens  or  claims; 
fourth,  by  dismissal  of  the  bill  as  Ke<r&vnhefore  provided; 
fifth,  by  final  decree  of  the  Court  of  Chancery  in  the  action.. 

This  is  the  section  as  amended  by  the  act  of  1909,  page  260, 
§  6.    The  amendment  added  the  words  which  we  have  italicized. 

Construction  of  Terms. 

Sec.  14.  And  be  it  enacted.  That  the  term  ''contractor"  as 
used  in  this  act,  shall  be  construed  as  meaning  the  person 


Municipal  Impkovements  Act  of  1892,  §  15.     165 

■with  whom  the  contract  with  the  said  city,  town,  township 
or  other  municipality  is  made,  his  assigns  or  legal  repre- 
sentatives. 

Time  of  taking  effect.     Repealer. 

Sec.  15.  And  be  it  enacted.  That  this  act  shall  take  effect 
immediately;  but  nothing  herein  contained  shall  affect  the 
validity  of  any  claims  or  liens  upon  moneys  due  or  to  grow 
due  under  contracts  made  by  cities,  towns,  townships  or  other 
municipalities  in  this  state  prior  to  its  passage ;  promded. 
however,  that  all  the  proceedings  to  enforce  any  such  claims 
or  liens  shall  be  subject  to  the  provisions  of  this  act  so  far 
as  the  same  may  be  applicable;  and  all  acts  and  parts  of  acts 
inconsistent  with  the  terms  of  this  act  are  hereby  repealed. 

This  is  the  section  as  amended  by  the  act  of  1909,  p.  260,  §  7, 
by  the  insertion  of  the  words  which  we  have  italicized. 

In  Howell  Lumber  Co.  v.  New  Brunswick,  75  Atl.  750  (Ch.), 
it  is  held  that  the  "proceedings"  referred  to  are  the  proceedings  in 
court  and  that  a  claim  due  under  a  contract  made  prior  to  the 
act  of  1909,  is  duly  filed,  although  no  bond  be  filed  with  it. 


CHA-PTER   IV. 


FORMS. 

<167 


FORMS, 


1.— Common  form  of  building  contract.      ?  2. 

ARTICLES  OF  AGREEMENT,  Made  the  firet  day  of 
May,  One  Thousand  jS^ine  Hundred  and  Two. 
BETWEEiSr  John  Carpenter  (called  hereinafter  the  owner) 
of  the  Village  of  Hackensack,  in  the  County  of  Bergen  and 
State  of  Xew  Jersey,  of  the  First  Part; 
AND  Thomas  Romaine  (called  hereinafter  the  huilder)  of 
the  Village  of  Hackensack,  in  the  County  of  Bergen  and 
New  Jersey,  of  the  Second  Part ; 

WITNESSETH,— The  said  party  of  the  second  part  doth 
hereby  for  him,  his  heirs,  executors  and  administra- 
tors, covenant,  promise  and  agree  to  and  with  the  said 
party  of  the  first  part,  his  executors,  administrators  or 
assigns,  that  he  said  party  of  the  second  part  his  executors 
or  administrators  shall  and  will  for  the  consideration  herein- 
after mentioned,  on  or  before  the  first  day  of  March  next 
well  and  sufficiently  erect  and  finish  the  four  story  brick 
building  to  be  erected  for  the  said  party  of  the  first  part  on 
the  lands  to  him  belonging,  situated  on  the  easterly  side  of 
Monroe  Street,  in  the  said  Village  of  Hackensack,  and  known 
as  lot  No.  42  on  a  certain  Map  entitled,  "Map  of  Hacken- 
sack Park"  agreeably  to  the  Drawings  and  Specifications 
made  by  Joseph  Story,  Architect,*  and  signed  by  the  said 
parties  and  hereunto  annexed,  within  the  time  aforesaid, 
in  a  good  workmanlike  and  substantial  manner,  under  the 
direction  of  the  said  Architect,^  to  be  testified  by  a  writing, 
or  certificate,  under  the  hand  of  the  said  Architect,  as  here- 
inafter mentioned,  and,  also,  shall  and  wall  find  and  provide 
such  good,  proper  and  sufficient  materials  of  all  kinds  what- 
soever, as  shall  be  pix)per  and  sufficient  for  the  completing 
and  finishing  of  all  the  works  of  the  said  Building  mentioned 
in  the  plans  and  specifications  for  the  sum  of  Fifteen  Thou- 
sand Dollars  to  be  paid  as  is  hereinafter  specified. 
(169) 


170  Mecuanics  Lien  Law. 

AIS^'D  the  said  party  of  the  first  part  doth  hereby,  for  him, 
his  heirs,  executors  and  administrators,  covenant,  promise 
and  agi'ee,  to  and  with  the  said  party  of  the  second  part,  his 
executors  and  administrators,  that  he  the  said  party  of  the 
first  part,  his  executors  and  administrators,  shall  and  will, 
in  consideration  of  the  covenants  and  agreements  being 
strictly  performed  and  kept  hy  the  said  party  of  the  second 
part  as  specified,  well  and  truly  pay  or  cause  to  be  paid  unto 
the  said  party  of  the  second  part  his  executors,  administra- 
tors or  assigns,  the  sum  of  Ffteen  Thousand  Dollars,  law- 
ful money  of  the  United  States  of  America,  in  manner 
following : 

Five  Thousand  Dollars  when  the  foundation  of  said  build- 
ing is  completed : 

Five  Thousand  Dollars  when  the  building  is  roofed  and 
ready  for  plastering ;  and  the  remaining  sum  of 

Five   Thousand  Dollars  sixtv  days   after  the  building  is 
entirely  completed. 

PROVIDED,  that  in  each  of  the  said  cases,  a  certificate 
shall  be  produced,  signed  by  the  said  Architect,  to  the  effect 
that  the  work  is  done  in  accordance  with  said  Drawings  and 
Specifications,  said  certificate,  however,  in  no  way  lessening 
the  total  and  final  responsibility  of  the  Builder ;  neither  shall 
it  exempt  the  Builder  from  liability  to  replace  work,  if  it  be 
afterwards  discovered  to  have  been  done  ill,  or  not  according 
to  the  Drawings  and  Specifications,  either  in  execution  or 
materials.^ 

And   it   is   hereby  further  a^eed  by   and   between  the 
the  said  parties: 

First. — The  Specifications  and  the  Drawings  are  intended 
to  co-operate,  so  that  any  works  exhibited  in  the  Drawings, 
and  not  mentioned  in  the  Specifications,  or  Vice  Versa,  are  to 
be  executed  the  same  as  if  they  were  mentioned  in  the  Speci- 
fications and  set  forth  in  the  Drawings  to  the  true  meaning 
and  intent  of  the  said  Drawings  and  Specifications,  with- 
out any  extra  charge  Avhatsoever.  Copies  thereof  certified 
by  the  Architect  to  be  true  copies  shall  be  furnished  to  the 
Builder. 

Second. — The  Builder  at  his  own  proper  cost  and  charges, 
is  to  provide  all  manner  of  materials  and  labor,  scaffolding; 


Forms.  171 

implements,  moulds,  models  and  cartage,  of  every  descrip- 
tion for  the  due  performance  of  the  several  erections. 

Third. — Should  the  Owner  at  any  time  during  the  pro- 
gress of  the  said  Building  request  any  alterations,  deviations, 
additions  or  omissions,  from  the  said  contract,  he  shall  be 
at  liberty  to  do  so,  and  the  same  shall  in  no  way  affect  or 
made  void  the  contract,  but  will  be  added  to  or  deducted  from 
the  amount  of  the  contract,  as  the  case  may  be,  by  a  fair  and 
reasonable  valuation.^ 

Fourth. — Should  the  Builder,  at  any  time  during  the 
progress  of  said  works,  refuse  or  neglect  to  supply  a  suffi- 
ciency of  materials  or  workmen,  the  Owner  shall  have  power 
to  provide  materials  and  workmen,  after  three  days'  notice 
in  writing  being  given,  to  finish  the  said  works,  and  the 
expense  shall  be  deducted  from  the  amount  of  the  contract.* 

Fifth. — Should  any  dispute  arise  respecting  the  true  con- 
struction or  meaning  of  the  Drawings  or  Specifications,  the 
same  shall  be  decided  by  the  said  Joseph  Story,  Architect, 
and  his  decision  shall  be  final  and  conclusive;  but  should 
any  dispute  arise  resi>ecting  the  true  value  of  the  extra  work, 
or  tlie  works  omitted,  the  same  shall  be  valued  by  two  com- 
petent persons — one  employed  by  the  Owner,  and  the  other 
by  the  Builder — and  those  two  shall  have  power  to  name  an 
umpire,  whose  decision  shall  be  binding  on  all  parties. 

Sixth — The  Owner  shall  not,  in  any  manner,  be  answer- 
able or  accountable  for  any  loss  or  damage  that  shall  or  may 
happen  to  the  said  works,  or  any  part  or  parts  thereof  respec- 
tively, or  for  any  of  the  materials  or  other  things  used  and 
employed  in  finishing  and  completing  the  same. 

Seventh. — 1^6  alterations  or  extra  work  shall  be  done  with- 
out a  written  order  from  the  Owner,  approved  by  the  Archi- 
tect and  an  express  agreement  in  writing  as  to  the  cost.^ 

Eighth. — The  Owner  will  insure  the  building  in  the  joint 
names  and  interest  of  himself  and  the  Builder  against  loss  or 
damage  by  fire,  in  such  sums  as  may  from  time  to  time  be 
agreed  ujwn  with  the  Builder  to  cover  the  work  and  materials 
used  in  the  building  and  around  the  premises,  and  the  poli- 
cies shall  be  made  payable  to  Owner  and  Builder,  as  their 
interests  may  appear.  The  Builder  shall  see  to  it  that  this 
insurance  is  satisfactorily  effected. 

Ninth. — All  work  and  materials,  delivered  on  the  premises 
to  form  part  of  the  works,  are  to  be  considered  the  property 


172  Mechanics  Lien  Law. 

of  the  Owner,  and  are  not  to  be  removed  without  his  consent ; 
but  the  Builder  shall  have  the  right  to  remove  all  surplus 
materials  after  the  completion  of  the  works. 

Tenth. — Neither  the  Builder  nor  the  Architect  shall,  with- 
out the  written  consent  of  the  O^viier,  have  authority  to  vary, 
alter,  amend  or  change  this  contract,  or  any  of  the  Plans  or 
Specifications  herein  referred  to. 

Eleventh. — Whenever  building  permits  shall  be  required 
by  any  municipality,  or  be  necessary  under  any  law,  ordin- 
ance or  other  regulation,  to  the  erection,  alteration  or  repair 
of  any  building,  the  same  shall  be  procured  by  the  Owner. 

Twelfth. — And  it  is  further  agTeed  that  the  said  con- 
tractor shall  file  no  lien  for  any  labor  or  material  furnished 
under  this  contract,  and  that  no  sub-contractor,  or  other  per- 
son, for  any  work  done,  or  materials  furnished,  shall  have 
any  right  to  file  any  lien  for  any  sum  which  may  be,  or 
become,  due  to  such  person,  and  that  the  right  to  file  any 
such  lien  is  hereby  expressly  waived  by  and  on  behalf  of  the 
said  contractor  and  every  other  person  aforesaid.*' 

Thirteenth. — The  builder  before  any  payment  under  this 
contract  is  demandable  will  procure  at  his  own  cost  and 
expense  and  tender  the  releases  of  any  persons  who  might 
make  claim  to  have  a  lien  upon  the  said  building  and  curti- 
lage, or  to  have  a  right  of  recourse  to  the  moneys  in  the 
owner's  hands  due,  or  to  grow  due,  to  the  said  builder  under 
the  terms  of  this  contract  for  materials  or  labor  furnished 
for  the  said  building  and  will  also,  accompanying  said  re- 
leases, tender  his  affidavit  that  the  persons  executing  the  same 
are  the  only  persons  who  have,  or  may  have,  any  right  of  lien 
against  said  building,  or  of  recourse  against  said  moneys  by 
reason  of  work  done,  or  materials  furnislied  for  the  said 
building,  but  this  stitpulation  is  solely  for  the  benefit  and 
protection  of  the  owner,  and  he  shall  not  be  in  anywise  liable 
or  answerable  to  anyone  whatsoever,  nor  shall  any  one  be 
entitled,  as  against  the  owner,  to  assert  any  right  of  lien, 
inchoate  or  otherwise,  upon  the  moneys  due  or  to  grow  due 
under  this  contract  to  said  builder,  by  reason  of  the  provi- 
sions of  this  stipulation,  or  by  reason  of  any  act  or  omission, 
on  said  owner's  part,  pursuant  to,  or  in  waiver  or  disregard 
of  its  provisions ;  neither  shall  any  pa^nnent  made  by  said 
owner  to  said  builder  in  waiver  or  disregard  of  the  provisions 
of  this  stipulation  impair,  in  anywise,  said  o^\Tier's  right  to 


Forms.  173 

insist  upon  a  compliance  with  its  requirements  by  the  builder 
as  to  any  payments  thereafter  to  mature." 

Fourteenth. — It  is  further  agreed  that  the  builder  shall 
not,  without  the  assent  of  the  owner,  assign  this  contract,  nor 
the  moneys  due  or  to  grow  due  to  said  builder  thereunder ; 
and  that  all  and  every  of  such  assignments,  if  made,  shall 
be  null  and  void  at  the  option  of  the  owner  (or  better,  shall 
be  null  and  void  as  to  the  owner).** 

Fifteenth. — It  is  further  agi'eed  that  if  the  builder  fails 
to  complete  the  said  works  by  the  first  day  of  March  next, 
he  shall  forfeit,  and  pay,  the  sum  of  twenty  dollars  for  each 
and  every  day  thereafter  during  which  the  said  work  shall 
remain  incomplete,  to  be  deducted  from  his  compensation 
hereinbefore  agreed  upon.^ 

In  WITNESS  WHEREOF,  the  said  parties  to  these 
presents,  have  hereunto  set  their  hands  and  seals  the  day 
and  year  above  written. 

Witness.  THO^JiAS  ROMAINE  (Seal). 

M.  D.  JOim  CARPENTER  (Seal). 

*The  specifications  and  plans  referred  to  in  this  contract  should 
be  also  signed  by  both  parties,  and  one  set  of  them  with  a  dupli- 
cate original  of  this  contract  should  be  filed  in  the  county  clerk's 
office. 

If  the  contract  be  for  an  addition  or  alteration,  or  for  repairs, 
or  for  the  removal  of  a  building,  it  will  be  readily  seen  how  to 
vary  its  form   accordingly. 

So  too,  this  form  can  be  readily  varied  to  meet  the  case  of  a 
contract  to  do  a  part  only  of  the  work  of  erecting  a  building. 

1.  It  is  part  of  the  architect's  duty  to  see  that  things  are  safe, 
that  the  place  is  taken  care  of;  to  see  whether  the  work  is  going 
on,  and  to  tiotify  the  contractor  to  proceed  and  complete  his  work. 
Federal  Trust  Co.  v.  Guigues,  74  Atl.  652. 

The  architect  is  not  authorized  to  waive  any  provision  on  behalf 
of  the  owner.     VanBushirk  v.  Bd.  of  Ed.,  75  Atl.  909. 

2.  No  action  can  be  maintained  unless  this  certificate  has  first 
been  obtained;  unless  it  can  be  shown  that  it  has  been  fraudu- 
lently withheld,  or  its  production  waived  by  the  owner.  Byrne 
V.  Sisters,  etc.,  16  Vroom  213;  Chism  v.  Schipper,  22  Vroom  1; 
Bemz  V.  Marcus  Sayre  Co.,  7  Dick.  275;  Kirtland  v.  Moore,  13 
Stew.  106;  Welch  v.  Huhschmidt  Co.,  32  Vroom  57;  Bradner 
V.  Roffsell,  28  Vroom  412;  Machinson  v.  Gonlon,  26  Vroom  564: 
Sheyer  v.  Pinkerton  Co.,  59  Atl.  462;  Steelmari  v.  Ludy,  72  Atl. 
423;   Federal  Trust  Co.  v.  Guigues,  74  Atl.  652. 

It  also  applies  to  payments  for  extra  work  as  well  as  all  other 


174  Mechanics  Lien  Law. 

payments  for  work  done  pursuant  to  the  contract.  Sheyer  v. 
Pinherton  Co.,  59  Atl.  462. 

The  provision  is  binding  on  the  owner,  in  respect  of  claimants, 
who  may  give  notice  under  §3,  and  if  the  owner  pays  the  con- 
tractor, without  first  obtaining  the  certificate,  when  it  is  not  un- 
reasonably, or  fraudulently,  withheld  by  the  architect,  he  will  be 
liable  to  such  claimants,  as  though  he  had  not  paid,  although 
the  building  was  in  fact  completed  at  the  time  of  such  payment. 
Daly  V.  Somers  Co.,  4  Kob.  343 ;  s.  c,  aff.  1  Buch.  307. 

But  it  seems  that  when  an  architect  is  discharged  by  the  owner, 
he  ceases  to  be  competent,  thereafter,  to  give  the  certificate  which 
the  contract  stipulates  for;  and  the  claimant  is  thereby  relieved 
from  the  obligation  to  procure  it,  if  the  contract  makes  no  pro- 
vision covering  the  case.  Federal  Trust  Co.  v.  Guigues,  74  Atl. 
652. 

The  architect's  certificate  is  properly  given  although  there  be 
some  slight  things  still  undone  when  they  are  so  left  to  aid  the 
further  progress  of  the  work  and  it  is  customary  to  consider  that 
the  general  terms  used  do  not  call  for  them  to  be  fully  completed. 
Veitch  V.  Clark,  1  Rob.  57. 

3.  Labor  and  materials  furnished  under  this  clause  are  fur- 
nished, pursuant  to  the  contract,  inasmuch  as  the  contractor  is 
bound  to  furnish  them  upon  the  owner's  demand.  WiUetts  v. 
Earl,  24  Vroom  270;  Dunn  v.  Stokeni,  16  Stew,  401;  but  when 
a  contract  provides  that  the  parties  thereto  may  agree  to  altera- 
tions in  the  building  at  any  time  during  its  construction  without 
altering  or  invalidating  this  agreement,  such  a  clause  does  not 
entitle  the  owner  to  demand,  nor  bind  the  contractor  to  make  al- 
terations or  additions,  and  if  they  are  so  agreed  upon  and  made, 
they  are  not  pursuant  to  the  contract,  but  independent  of  it. 
South  End  Im'provement  Co.  v.  Harden,  52  Atl.  1127. 

4.  This  clause  does  not  entitle  the  contractor,  or  his  assignee, 
to  require  the  owner  to  complete  the  work  and  account  for  the 
balance  of  the  contract  price  after  deducting  the  cost  of  such 
completion,  when  the  contractor  has  abandoned  the  work  before 
completion.  If  the  assignee  offered  to  complete,  and  the  owner 
refused  to  permit  him,  the  assignee  might  then  have  an  equita- 
ble claim  against  such  owner.  Bemz  v.  Marcus  Sayre  Co.,  7  Dick. 
275. 

If  the  builder  abandon  the  work,  and  his  sureties  complete  it, 
with  the  owner's  assent,  the  work  done,  and  materials  furnished, 
by  them  are  neither  done  and  furnished  for  the  owner  or  for  the 
builder,  but  to  relieve  themselves,  as  cheaply  as  possible  from 
their  obligation  as  sureties ;  and  they  are  entitled  to  the  unearned 
portion  of  the  contract  price,  including  a  percentage  of  previously 
earned  payments,  retained  to  secure  completion  of  the  work,  so 
far  as  is  necessary  to  reimburse  them  their  necessary  outlay.  St. 
Peter's  Church  v.  Van  Note.  21  Dick.  78;  but  the  case  is  other- 
wise with  the  builder's  sureties,  who,  upon  his  insolvency,  furnish 


Foi{-Ms.  175 

him  with  materials,  etc.,  and  thus  enable  him  to  complete  his  con- 
tract.   Evans  v.  Lower,  1  Eob.  232. 

See  also  §  2,  note  2,  Abandonment  of  Contract. 

5.  No  action  can  be  maintained  for  such  alteration  (or  extra 
work) ;  unless  the  builder  can  produce  such  written  orders  or 
prove  that  the  owner  either  waived  the  requirement  or  fraudulently 
lured  him  into  doing  the  work  without  it.  Sheyer  v.  Pinherton 
Co.,  59  Atl.  462.  See  also  VanBushirl-  v.  Br.  of  Ed..  75  Atl.  909. 

The  order  must  be  procured  before  the  work  is  done,  there  can 
be  no  lien  for  such  work  done  without  such  order  although  the 
architect,  after  it  is  done,  gives  such  order.  Federal  Trust  Co.  v. 
Guigues,  74  Atl.  652. 

6.  This  stipulation,  if  the  contract  is  not  filed,  will  not  protect 
the  land  and  building  from  the  lien  of  mechanics  and  material- 
men, even  although  the  latter  be  sureties  on  the  builder's  bond 
given  to  secure  the  performance  of  the  contract,  Brewing  Co.  v. 
Donnelly,  30  Vroom  48;  s.  c.  30  Vroom  439;  but  this  is  so 
because  the  sub-contractor  (or  other  claimant)  is  not,  ipso  facto, 
chargeable  with  knowledge  of  what  is  contained  in  the  builder's 
contract ;  and  where  it  is  shown  that  he  did  have  notice  of  such 
provision,  the  mere  acceptance  of  employment  by  him,  as  such, 
will  bar  him  from  asserting  any  lien  therefor.  Bates,  etc.,  Co.  v. 
Trenton  Co.,  41  Vroom  684;  Stewart,  etc.,  Co.  v.  Trenton  Co., 
42  Vroom  568, 

7.  Where  a  building  contract  provides  that  the  final  payment 
shall  become  due  on  the  completion  of  the  work  and  on  the 
builder's  furnishing  releases  of  all  liens  and  claims  that  might 
arise  in  the  performance  of  the  contract;  the  builder  must  show 
that  before  he  begun  suit  he  tendered  such  releases,  or  else  that 
no  such  liens  or  claims  then  existed.  Turner  v.  Wells,  35  Vroom 
269;  Titu^  v.  Gunn,  40  Vroom  410.  Such  non-existence  of  liens 
or  claims  is  shown  in  a  suit  by  a  sub-contractor  against  the  builder, 
in  which  it  is  shown  that  the  builder's  contract  with  the  owner 
was  filed  with  the  specifications,  and  that  the  owner  had  settled 
with  such  builder  without  receiving  any  stop  notices  and  before 
the  sub-contractor's  suit  was  begun.  Turner  v.  Wells,  38  Vroom 
572. 

Such  a  stipulation  in  a  building  contract  refers  to  liens,  or 
claims,  arising  under  the  Mechanic's  Lien  Act.  Turner  v.  Wells, 
supra;    Titus  v.   Gunn.,  supra. 

By  the  terms  of  this  stipulation,  the  builder's  right  to  de- 
mand his  compensation  cannot  mature  so  long  as  there  are  any 
persons  unpaid  who  might  be  entitled  to  give  notice  under  the 
third  section  of  the  Mechanics'  Lien  Act.  According  to  the  rule 
pronounced  in  Binns  v.  Slingerland  and  followed  and  approved 
in  numerous  cases  since,  the  inchoate  lien  of  such  persons  must, 
therefore,  continue,  until  all  of  them  have  been  satisfied.  Owners 
who  insist  upon  making  this  clause  a  part  of  their  contract  may, 
therefore,  thereby  prevent   the   builder   from  effectively  assigning 


176  Mecha^'ics  Liex  Law. 

any  of  his  compensation,  as  against  such  claimants.  The  stipu- 
lation has  been  drawn  so  as  to  prevent,  on  the  other  hand,  any 
possible  claim  that  such  claimants  might  have,  as  against  the 
owner  also,  an  inchoate  lien  vuitil  they  were  actually  paid  or  had 
released, 

8.  When  a  building  contract  provides  that  any  assignment  by 
the  builder  of  the  moneys  due  or  to  grow  due  to  him  thereunder 
shall  at  the  option  of  the  owner  be  null  and  void ;  the  owner  must 
exercise  such  option  within  a  reasonable  time  after  being  notified 
of  any  such  assignment  or  the  right  will  be  lost ;  if  the  provision 
is  not,  indeed,  wholly  nugatory  as  in  contravention  of  the  statute ; 
which  makes  all  choses  in  action  assignable  (Gen.  Sts.  2591,  § 
340;    1903,  p.  537,  §  19).    Turner  v.  \V\ells,  35  Vroom  269. 

Such  stipiilation  is  for  the  sole  benefit  of  the  owner.  Other 
parties  have  no  interest  in  it,  no  right  to  demand  its  fulfillment 
and  are  entitled  to  no  indemnity  for  its  violation.  Burnett  v. 
Jersey  City,  4  Stew.  341 ;  United  States  Co.  v.  Newark,  74  Atl.  192. 

9.  A  penalty  clause  is  usually  good  for  the  owner's  actual 
damage  only;  but  in  Fell  v.  McManus,  1  Atl.  747  (Bird,  V.  C.), 
it  seems  to  have  been  considered  that  an  owner  would  be  entitled 
to  the  actual  penalty,  without  proof  as  to  what  his  actual  damages 
might  be,  although  the  parties  in  that  case  agreed  upon  an  amount 
to  be  allowed. 

For  the  rule  on  this  subject  see  Monmouth  Park  Association  v. 
Wallis  Works,  26  Vroom  132  (E.  &  A.)  ;  Van  Buskirk  v.  Bd.  of 
Ed.,  75  Atl.  909.  If  the  owner  delays  the  completion  the  time  for 
completion  is  thereby  pro  tanto  extended,  if  the  contract  so  pro- 
vide.    See  last  case  above  cited. 

2. — Form  of  stop  notice.    H  3  and  6. 

To  John  Carpenter,  O^raer: 

You  are  hereby  notified,  that  Thomas  Romaine  (the  Con- 
tractor) is  justly  indebted  to  me,  in  the  sum  of  Five  Hun- 
dred Dollars  *  for  materials  furnished,  by  me  to  him,  and 
used  in  the  erection  of  *  the  four  story  brick  building,  erected 
or  being  erected  on  the  land  owned  by  you,  and  situated 
(describe  the  land  as  the  building  contract  describes  it  if  it 
sufficiently  does  so;  otherwise,  describe  it  according  to  the 
fact),  pursuant  to  the  written  contract,  made  between  you 
and  him,  and  on  file  in  the  Bergen  County  Clerk's  Office; 
and  you  are  further  notified,  that  I  have  demanded  payment 
from  the  said  Thomas  Romaine  of  the  said  sum  of  money, 
so  due  and  owing  to  me  as  aforesaid,  and  that  he  has  refused 
to  pay  the  same  or  any  part  thereof ;  and  you  are,  therefore, 
required  to  retain  the  amount,  so  due  and  claimed  by  me, 


Forms.  177 

out  of  the  amount  owing  by  you  on  said  contract,  or  that 
may  hereafter  become  due  and  owing  from  you  on  said  con- 
tract, and,  on  being  satisfied  of  the  correctness  of  my  de- 
mand, to  pay  the  same  to  me. 

JOXATHA^^  BAILEY. 
Dated  September  6,  1902. 

*If  the  claim  is  for  wages,  say,  in  lieu  of  the  words  between 
the  asterisks, — for  wages  due  me  for  work  and  labor,  on  his  employ- 
ment, in  the  erecting  and  constructing. 

If  the  claim  is  for  materials,  as  well  as  for  wages,  insert  the 
clause  last  given  at  the  first  asterisk. 

If  the  work  under  contract,  is  for  the  alteration,  reparation,  or 
removal  of  a  building,  the  notice  should  be  varied  accordingly. 

If  the  amount  claimed  in  this  notice  exceeds  the  ti-ue  amount 
due,  by  even  a  small  amount,  the  notice  may  be  entirely  worthless. 
See  §  3,  and  notes,  as  to  this  and  other  important  matters. 

If  a  claimant,  not  a  sub-contractor,  has  a  claim  for  materials  as 
well  as  for  wages  it  may  be  good  practice  to  make  a  separate 
demand  and  notice  for  each.  So  if,  for  any  reason,  it  is  doubtful 
whether  all  that  is  claimed  is  within  the  remedy  of  the  third  sec- 
tion, it  might  be  wise  to  make  one  demand  and  notice  for  the 
amount,  that  is  certainly  good  and  a  simultaneous,  but  separate, 
demand  and  notice  for  the  rest. 

3. — Notice  to  builder  that  owner  has  been  served  with 
a  stop  notice.*     ^  3. 

To  Thomas  Romaine  (Builder)  : 

You  are  hereby  notified  tliat  1  liave  been  served  with  a 
notice,  a  copy  whereof  is  as  follows  (here  insert  a  copy  of  the 
stop  notice  which  has  been  served). 

JOHN  CARPENTEB. 

Dated  September  7,  1902. 

'""Owners  frequently  neglect  to  give  the  above  notice;  but,  by 
reference  to  the  statute  (§§  3  and  4),  it  will  be  seen  that  it  may 
very  materially  add  to  the  owner's  protection  to  give  it. 

Claimants  might  find  it  also  to  their  advantage,  to  prepare  this 
notice  and  see  that  it  is  signed  by  the  owner,  and  served,  with  his 
approval  on  the  builder;  as  they  would  then,  in  the  absence  of 
notice  to  sue  (see  form  4,  post),  be  enabled  within  five  days  there- 
after, t-o  more  readily  satisfy  the  owner  that  their  claims  were 
correct. 

12 


178  Mechanics  Lien  Law. 

3a. — Form  of  declaration  in  a  suit  against  the  owner,  on 
a  stop  notice.      |  3. 

New  Jersey  Supreme  Court  of  the 
day  of,  etc. 
Bergen  County,  ss. :  John  Carpenter  the  defendant 

in  this  suit  was  summoned  to  answer  Samuel  Andreus  the 
plaintiff  therein  in  an  action  upon  contract  and  thereupon 
the  said  Samuel  Andreus,  by  his  attorneys,  X.  Y.,  complains 
for  that  whereas  heretofore,  to  wit  on  the,  etc.  (date  of  the 
building  contract)  at,  etc.  (venue)  the  said  defendant  was 
then  and  tbere  the  owner  of  a  certain  parcel  of  land  and 
premises,  viz. ;  (describe  the  land),^  and  being  such  owner 
as  aforesaid  the  said  defendant  then  and  tbere  made  and 
entered  into  a  written  contract  with  Thomas  Romaine,  a  copy 
whereof  is  annexed  to  this  declaration  and  is  hereby  referred 
to  and  made  part  hereof  f 

And  the  plaintiff  avers  tluit  afterwards,  to  wit,  on,  etc. 
(the  true  date)  the  said  contract,  and  a  duplicate  thereof, 
together  with  the  specifications  accompanying  the  same,  and  a 
copy  and  copies  thereof,  were  filed  in  the  office  of  the  Clerk 
of  Bergen  County,  in  which  the  building  mentioned  in  said 
contract  is  situated  before  anv  work  was  done  or  materials 
were  furnished  for  the  said  building: 

And  the  plaintiff  further  avers  that  afterwards,  to  wit,  on 
the  day  and  year  last  aforesaid,  at  (venue)  tlie  said  Thomas 
Romaine  became  and  was  indebted  to  the  plaintiff  in  a  large 
sum  of  money,  to  wit,  the  sum  of  one  thousand  dollars  (the 
exact  sum  stated  in  the  plaintiff's  notice)^  for  materials  fnr- 
nished  by  the  said  plaintiff",  at  the  special  instance  and 
request  of  the  said  Thomas  Romaine,  and  used  in  the  erec- 
tion of  the  said  building,  and  in  the  like  sum  for  materials 
furnished  and  for  work  and  labor  by  the  plaintiff  done,  per- 
formed, and  bestowed,  at  the  like  special  instance  and  request 
of  the  said  Thomas  Romaine,  and  used  in  the  erecting  and 
constructing  of  said  building,  and  on  the  employment  by  the 
said  Thomas  Romaine  of  the  plaintiff  as  a  sub-contractor, 
journeyman  and  laborer  in  that  behalf ;  and  being  so  indebted 
the  said  Thomas  Romaine  in  consideration  thereof  then  and 
there,  to  wit,  at  the  time  and  place  last  aforesaid,  imdertook 
and  promised  to  pay  the  sum  of  One  Thousand  Dollars  to 
the  plaintiff  upon  demand : 

xVnd  the  said  plaintiff"  fnrther  avers  tliat  thereafter,  to  wit, 


FoBMs.  179 

at  the  time  and  place  last  aforesaid  he  demanded  the  said  sum 
of  One  Thousand  Dollars  of  the  said  Thomas  Romaine  and 
that  the  said  Thomas  Romaine  then  and  there  rcd'used  to  pa\ 
the  same,  or  any  part  thereof  to  the  plaintiff,  and  thereupon 
the  plaintiif,  afterwards,  to  wit,  at  the  time  and  place  last 
aforesaid,  gave  the  said  defendant  notice  in  writing  of  said 
demand  and  refusal  and  of  the  amount  due  to  tlie  plaintiff 
as  aforesaid  and  so  demanded : 

And  the  plaintiff  further  avers  that  the  said  Thomas 
Romaine  hath  ever  since  the  time  last  above  mentioned, 
refused  and  still  doth  refuse  to  pay  the  said  sum  of  One 
Thousand  dollars  or  any  part  thereof  to  him,  the  plaintiff"; 
that  the  said  defendant  on  the  said,  etc.  (the  alleged  date  of 
the  demand),  was  the  owner  of  the  said  lands,  premises  and 
building,  and  was  satisfied  of  the  correctness  of  the  plaintiff's 
said  demand;  of  all  which  matters  and  things  the  said 
defendant  had  notice,  heretofore,  to  wit,  at  the  time  last 
aforesaid  at  (venue). 

And  the  plaintiff'  further  avers  that  the  said  Thomas. 
Romaine,  after  the  making  of  the  said  contract  firstly  above 
mentioned,  did  duly  perform  all  the  matters  and  things 
therein  and  thereby  required  and  undertaken  by  him  to  be 
performed,  according  to  the  true  tenor  and  effect  of  said 
contract,^  and  that  at  the  time  aforesaid,  when  he,  the  said 
plaintiff,  gave  the  said  defendant  notice  in  writing,  as  afore- 
said, that  there  Avas  due,  the  sum  of  Two  Thousand  Dollars,, 
and  thereafter,  and  before  the  beginning  of  this  suit,  there- 
became  due  the  further  sum  of  two  thousand  dollars,  from 
the  defendant  to  the  said  Thomas  Romaine,  by  reason  of  the 
said  perfornumce,  by  the  said  Thomas  Romaine  of  the  said 
contract  first  above  mentioned. 

By  means  whereof,  and  by  foi'ce  of  the  statute  in  such 
case  made  and  provided,  the  said  defendant,  John  Carpenter, 
became  and  was  indebted  to  the  said  plaintiff'  in  the  said  sum 
of  Two  Thousand  Dollars,  to  wit,  on  the  day  and  year,  and 
at  the  place  aforesaid,  and  being  so  indebted  he,  the  said 
defendant,  afterwards,  to  wit,  on  the  day  and  year,  and  at  the 
place  last  aforesaid,  in  consideration  thereof  underto<ik,  and 
then  and  there  faithfully  promised  the  said  plaintiff  to  pay 
him  the  said  sum  of  Two  Thousand  Dollars,  when  he,  the  said 
defendant,  John  Carpenter,  should  he  there  unto  afteinvards 
requested. 


180  Mechanics  Lien  Law. 

(Add  the  coinnion  counts,  as  in  assumpsit,  and  conclude 
with  common  breach.  Annex  bill  of  particulars  and  copy  of 
•contract. ) 

1.  This  allegation  may  not  be  necessary,  but  see  the  note:J 
tinder  §  3  of  the  statute,  as  to  what  the  plaintiff  must  show,  and 
generally  as  to  the  other  allegations  necessary. 

2.  If  preferred,  set  out  the  contract  in  the  body  of  the  decla- 
ration, according  to  its  legal  effect ;  in  which  case  it  will  not  be 
necessary  to  annex  a  copy  thereof,  and  this  reference  to  it  as  so 
annexed  will  be  omitted.  It  does  not  seem  necessary  to  vary  the 
declaration,  accordingly  as  this  contract  is,  or  is  not,  under  seal; 
and  it  is  believed  that,  if  it  be  under  seal,  no  profert  is  necessary. 

3.  This  is  important,  as  it  may  be  considered  a  fatal  variance 
if  the  sum  here  alleged  be  other  than  the  sum  specified  in  the 
notice  served  by  the  plaintiff  upon  the  owner. 

4.  This  general  averment  of  performance  of  conditions  prece- 
dent is  of  great  importance. 

4.— Notice  from  builder  to  claimant,  under  stop  notice, 
to  establish  his  claim  by  judgment.      §  4. 

To  Jonathan  Bailey  (Claimant)  : 

You  are  hereby  notified  that  I  dispute  your  claim  of  Five 
Hundred  Dollars  whereof  you  have  served  the  following 
notice  upon  John  Carpenter  (owner), — 

(Here  insert  a  copy  of  the  stop  notice  which  has  been 
served. ) 

You  are,  therefore,  requested  to  establish  your  said  claim 

by  iudgment. 

THOMAS  ROMAINE  (Builder). 

Dated  September  10,  1902.* 

*This  notice  must  be  served  on  the  claimant  within  five  days 
after  the  builder  himself  receives  notice  of  the  claim  from  the 
owner.  The  failure  to  give  this  notice  in  time  will  protect  the 
owner  in  paying  the  claim,  if  he  is  otherwise  satisfied  of  its  cor- 
rectness. 

To  make  this  notice  effectual,  it  is  also  necessary  for  the  builder 
to  prepare  and  serve  on  the  owner  a  notice  such  as  is  shown  in 
form  No.  5. 


FOKMS.  ISi 

5. — Notice  from  builder  to  owner  that  a  notice  to  estab- 
lish his  claim  by  judgment  has  been  served  on  claimant. 

To  John  Carpenter  (Owner)  : 

Take  notice  that  I  have  this  day  served  on  Jonathan 
Bailey,  claimant,  the  following  notice : 

(Here  insert  a  copy  of  the  notice  served  on  the  claimant- 
See  form  4,  supra.) 

THOMAS  ROMAINE  (Builder). 

Dated  September  11,  1902. 

6.— Owner's  consent  to  erection  of  building.      §  7. 

Whereas  it  is  desired  by  George  Duane,  to  erect  a  barn  ou 
premises  occupied  by  him,  as  my  tenant,  and  situated  in  the 
Borough  of  Rutherford,  in  the  County  of  Bergen,  and  State 
of  New  Jei-sey,  and  more  particularly  described  as  follows, 
viz: 

(Describe,  the  lands  as  would  be  necessary  in  any  convey- 
ance of  them. ) 

And  whereas  the  said  George  Duane  has  procured  Thomas 
Romaine  to  agree  to  furnish  all  the  labor  and  materials 
necessary  for  the  erection  and  construction  of  said  barn  and 
to  complete  and  finish  the  erection  and  construction  thereof, 
on  condition  tliat  I  give  my  consent,  to  the  erection  of  said 
bam  on  said  premises,  of  which  I  am  the  o\\mer,  so  that  my 
said  lands  may,  if  necessary,  be  subjected  to  a  lien  for  the- 
erection  and  construction  of  said  bam : 

Now,  therefore,  this  instrument  witnesses  that  I  do  give 
my  consent  to  the  erection  and  construction  of  the  said  barn 
on  my  said  land,  accordingly. 

In  witness  whereof,  I  have  hereto  set  my  hand  and  seal 
this  first  day  of  May,  in  the  year  Nineteen  Hundred  and 
Two.* 

JONATHAN  CARPENTER  (Seal). 

(If  it  is  desired  to  record  such  a  consent,  add  an  acknowl- 
edgment in  the  usual  form.) 

*An  owner  is  most  unlikely  to  give  such  a  consent;  but  under 
some  circumstances  he  might  do  so,  on  taking  from  his  tenant 
sufficient  security;  and  the  foregoing  form  will,  it  is  believed,, 
answer  the  requirements  of  the  statute. 


182  Mechanics  Lien  Law, 

7.— Married  woman's  dissent,*    'i  13. 

To  whom  it  may  conceru: 

Take  notice  that.  I,  Mary  Ann  Carpenter,  wife  of  John 
Carpentei-  of,  etc.,  am  the  owner  of  the  following  described 
lands,  viz. : 

(Here  describe  the  lands  as  carefully  as  would  be  neces- 
sary in  a  conveyance  of  them.) 

That  it  has  come  to  my  knowledge  that  one  Thomas 
Romaine  (the  builder),  or  some  other  person  or  persons,  are 
about  to  erect  (here  si)ecify  the  building  or  buildings)  on  my 
said  lands ; 

(Or  about  to  repair  the  dwelling  house  and  bam  on  my 
said  lands;) 

That  1  do  not  consent  to  the  erection  of  such  buildings  on 
my  said  land ; 

(Or  that  I  do  not  consent  to  the  repairing  of  such  build- 
ings on  my  said  land;) 

And  that  the  same  is  being  done  against  my  wishes  and 
consent. 

In  witness  whereof,  I  have  sig-ned  these  presents,  this  first 
•day  of  June,  in  the  year  Nineteen  Hundred  and  Two. 

MARY  ANN  CARPENTER. 

^*This  paper  when  signed  must  be  filed  in  the  office  of  the  clerk 
•of  the  county  where  the  lands  lie. 

8. — Lien  claim,  by  contractor  ag-ainst  owner,  for  erect- 
ing a  building.      ?  16. 

Bereen  Countv  Clerk's  Office. 

Thomas  Romaine,        ^ 

Builder,      I 

V.  )■  Lien  Claim. 

John  Carpenter,  j 

Owner.     J 

Be  it  known,  that  Thomas  Romaine,  of  the  Village  of 
Hackensack,  etc.,  claims  a  lien  upon  the  building  and  lands 
hereinafter  described,  pursuant  to  the  statute,  in  such  case 
made  and  provided,  for  a  debt  contracted  and  owing  to  him 
for  labor  performed  and  materials  furnished  for  the  erec- 
tion^ and  construction  of  said  building;  and,  therefore,  shows. 

First — The  said  building  is  a  four-story  brick  building  on 


Forms.  183 

a  lot  or  curtilage  upon  which  this  lien  is  claimed,  and  which 
is  situated  in  the  village  of  Hackensack,  in  the  county  of 
Bergen,  and  State  of  New  Jersey,  and  is  more  particularly 
described  as  follows,  viz. : 

(Here  describe  the  land  as  carefully  as  would  be  neces- 
sary in  a  conveyance). 

Second — The  name  of  the  owner  of  the  land  and  of  the 
estate  therein  on  which  the  lien  is  claimed  is  John  Carpen- 
ter.2 

Third. — The  name  of  the  person  who  contracted  the  debt 
and  for  whom  and  at  whose  request  the  labor  was  performed 
and  the  materials  furnished  for  which  such  lien  is  claimed 
is  the  said  John  Carpenter. 

Fourth. — The  following  is  a  bill  of  particulars,  exliibiting 
the  amount  and  kind  of  labor  performed  and  of  materials 
furnished,  and  the  price  at  which,  and  times  when,  the  same 
was  performed  and  furnished,  and  giving  credit  for  all  the 
payments  made  thereuiwn  and  deductions  that  ought  to  be 
made  therefrom  and  exhibiting  the  balance  justly  due  to  the 
said  Thomas  Romaine,  claimant,  from  the  said  John  Car- 
penter, viz. : 

John  Carpenter, 

To  Thomas  Romaine,  Dr. 
To  furnishing,  from  the  first  day  of  May,  1902,  to 
the  third  day  of  February,  1903,  all  the  labor  and 
materials  necessary  to  sufficiently  erect  and  fin- 
nish  the  four-story  brick  building  above  men- 
tioned, pursuant  to  contract,  at  the  agreed  price 
of $15,000 

CR. 

July  15,  By  Cash  on  Account $5,000 

November  29,  By  Cash  on  Account 2,500 

December  23,  Bv  Cash  on  Account 2,500 

Total   Credits 10,000 

Balance  Justly  Due  Claimant $5,000 

Five  thousand  dollars,  with  interest,  from  xYpril 

4,  1902,  as  per  contract. 

All  the  above  labor  was  perfonned  and  materials  furnished 
between  the  first  day  of  May,  Nineteen  Hundred  and  Two, 


184  Mechanics  Lien  Law, 

and  the  third  day  of  February,  Nineteen  Ilnndred  and 
threej  which  said  last  mentioned  date  is  the  date  of  the  ]a:rt 
work  done  and  materials  furnished  for  which  such  debt  is 
due.^ 

THOMAS  R0MAI:N^E. 

1.  If  the  claim  is  for  addition,  alteration  or  repair,  vary  the 
language  accordingly. 

2.  The  nature  of  the  owner's  estate  does  not  need  to  be  stated, 
and  had  better  not  be  attempted. 

3.  This  date  should  correspond  with  the  bill  of  particulars  and 
be.  stated  with  accuracj'. 

State  of  New  Jersey,  "I 
County  of  Bergen,  j 

Thomas  Romaine,  of  full  age,  being  duly  sworn  on  his 
oath,  says  that  he  is  the  claimant  named  in  the  foregoing 
claim ;  that  the  bill  of  particulars  and  statements  therein  set 
forth,  shown  in  said  claim,  are  true;  that  the  same  is  for  la- 
bor done  and  materials  furnished  in  the  erection  of  the  build- 
ing in  such  claim  described,  at  tJie  times  therein  specified ; 
and  that  the  amount  as  claimeil  therein  is  justly  due  and 
owing,  from  the  said  John  Carpenter  to  said  claimant. 

THOMAS  ROMAINE. 

Sworn  and  subscribed  this  sixteentli 
day  of  April,  A.  D.  Nineteen 
Hundred  and  Three. 

J.  A.  K.,  etc. 

ENDORSEMENT. 

Bergen  County  Clerk's  Office. 

Thomas  Romaine,  ^ 

Builder,  [ 

V.  y  Lien  Claim. 

John  Carpenter,  j 

Owner.  J 

Summons  was  issued  on  the  within  claim  this  day 

of  ,  1903,  at  the  suit  of  Thomas  Romaine,  claimant 


Forms.  18i> 


again&t  John  Carpenter,  owner  and 
mortgagees. 


J.  R.  R.,  Clerk. 


9. — Lien  claim,  by  laborer  or  material  man,  against 
owner,  as  builder  and  owner,  for  erecting  a  building.    §  16. 

(The  lien  claim,  in  this  instance,  should  style  the  oAvner  as 
builder  and  owner ;  otherwise  it  will  be  in  the  same  form  as 
is  given  above  in  Form  ISTo.  8,  with  the  exception  of  the 
bill  of  particulars,  which,  as  the  claim  is  not  for  a  contract 
job,  must  specify  the  amount  and  kind  of  labor  or  materials, 
and  tlie  prices  at  which,  and  times  when,  the  same  were  done 
and  furnished.  The  following  may  serve  as  a  guide)  : 

John  Carpenter, 

To  Thomas  Romaine,  Dr. 

1902. 

September  2,  To  200  ft.  of  pine  flooring,  at  $20  per  M  $40 
September  13,  To  7  days'  labor  of  three  men  in  laying 
floor,  September  6  to  September  13,  at  $3  per  man .  .      63 

Total    $103 

Balance  justly  due  claimant,  One  Himdred  and  Three 
dollars,   etc. 

10.— Lien  claim,  by  laborer  or  material  man  against 
different  persons,  as  builder  and  owner,  for  erecting  a 
building,    g  16. 

Bergen  County  Clerk's  Office. 

Charles  Black  ^ 

rm  Ti       *•        1,   -1 1        r  Lien  Claim. 

Thomas  Romaine,  builder.    I 

John  Carpenter,  oAvner.        J 

Be  it  known  that  Charles  Black  of  the  Village,  ete.  (pro- 
ceed as  in  Form  Xo.  8,  supra,  naming  Thomas  Romaine  as 
builder,  in  lieu  of  John  Carpenter,  in  the  third  clause ;  and 
Thomas  Romaine  as  debtor,  in  lieu  of  John  Cai-penter  in 
the  fourth  clause,  m  the  bill  of  particulars,  and  in  the  affi- 
davit. 

The  bill  of  particulars  also  must  comply  with  the  direc- 
tions given  in  Form  No.  9,  su])ra.) 


186  Mechanics  Lien  Law, 

11.— Lien  claim,  for  erecting  one  building  and  for  altera- 
tion and  repairs  to  another,  on  the  same   curtilage.      ?  16 

Bergen  County  Clerk's  Office. 
Cliarlse  Black.  ^ 

Thomas  Roinaine,  builder,    f 
John  Carpenter,  owner.        j 

Be  it  known  that  Charles  Black  of  the  Village,  etc.,  claims 
a  lien  upon  the  buildings  and  lands  hereinafter  described, 
pursuant  to  the  statute  in  such  case  made  and  provided,  for 
a  debt  contracted  and  owing  to  him  for  labor  performed  and 
materials  furnished  for  the  erection  and  construction,  as  well 
as  for  the  alteration  and  repair  of,  and  addition  to,  the  said 
buildings,  and,  therefore,  he  shows, 

First. — The  said  buildings  are  a  two-story  frame  dwelling 
house,  and  a  frame  barn  and  outhouse  on  a  lot  or  curtilage, 
etc.  (proceed  as  in  Form  No.  8,  with  such  changes  as  are 
necessary,  in  regard  to  the  builder  and  debtor,  and  the 
bill  of  particulars,  as  is  directed  in  Form  'No.  10.  And  note 
further,  that  the  bill  of  particulars  should  separate  the  claim 
for  alterations  and  repairs  from  the  claim  for  other  matter. 
See  Sec.  16,  note  6.     The  following  may  serve  as  a  guide)  : 

Thomas  Romaine 

To  Charles  Black,  Dr. 

For  alterations  and  repairs  on  the  barn  above  mentioned, 
viz. : 
1902. 
May  10,  To  3  days'  work,  shingling  roof  of  barn, 

May  8-10,  3  men,  at  $2.50  per  day  each $22.50 

May  17,  To  6  days'  work,  altering  stalls  in  barn, 

May  12-17,  3  men,  at  $2.50  per  day  each 45.00 

Total  for  alterations  and  repairs $67.50 

For  erection  and  construction  of  the  dwelling  house  above 

mentioned : 

1902. 

May  31,   To  12   days'  work  laying  floors  in  said 

house,  May  19-31,  3  men,  at  $2.50  per  day  each,      $90.00 

June  7,  To  Q  davs'  work  of  3  men  hanging  doors, 

June  2-7,  at  $2.50  each 45.00 

Total  for  erection  and  construction $135.00 


Forms.  187 

Balance  justly  due  claimant,  in  all,  Two  Hundred  and 
Two  Dollars  and  Fifty  Cents,  etc.^ 

(Conclude  as  in  Form  'No.  8  and  add  verification.) 

1.  If  the  claim  for  alterations  and  repairs  does  not  constitute 
one  entire  debt  with  that  for  erection  and  construction,  the  state- 
ment of  the  date  of  the  last  work  done  should  be  double.  It  is 
possible  that,  in  such  case,  there  may  be  two  lien  claims  filed,  one 
for  the  alterations,  the  other  for  erection. 

12. — Lien  claim  for  erection  of  several  houses  with  ap- 
portionment.   I  22. 

Bergen  County  Clerk's  Office.    - 

Samuel  Andreus  ^ 

Thomas  Romain,  Builder,       h     len 
John  Carpenter,  Owner.         j 

Be  it  knomi  that  Samuel  Andreus,  of  the  Village,  etc., 
claims  a  lien  ujjon  the  buildings  and  lands  hereinafter  de- 
scribed, pursuant  to  the  statute  in  such  case  made  and  pro- 
\'ided,  for  a  debt  contracted  and  owing  to  him  for  labor  per- 
formed and  materials  furnished  for  the  erection  and  con- 
strnction  of  said  buildings,  and  therefore,  shows, 

First. — The  said  buildings  are  five  frame  dwelling  houses 
on  a  lot  or  curtilage  situated,  (here  describe  the  whole  cur- 
tilage, and  then  proceed)  and  each  of  the  said  buildings  and 
the  lot  or  curtilage  whereon  it  is  erected  and  upon  which 
this  lien  is  claimed  may  he  described,  as  follows,  viz. : 

The  first  building  is  a  frame  dwelling  house  on  a  lot  or 
curtilage  situated,  etc.  (here  described  the  particular  curtil- 
age of  that  particular  house). 

The  second  building  is  (proceed  as  before,  and  so  on  until 
each  building  and  its  curtilage  is  described). 

Second. — The  name  of  the  owner  of  all  the  aforesaid  lands 
and  of  the  estate  therein  on  which  the  lien  is  claimed  is  John 
Carpenter. 

Third. — The  name  of  the  person  who  contracted  the  debt 
and  at  whose  request  the  labor  was  performed  and  the  ma- 
terials furnished  for  which  such  lien  is  claimed  is  the  said 
Thomas  Romaine. 

Fourth. — The  following  is  a  bill  of  particulars,  exhibiting 


188  Mechanics  Lien  Law. 

the  amount  and  kind  of  labor  performed  and  of  materials 
furnished,  and  the  price  at  which,  and  times  when,  the  same 
was  performed  and  furnished,  and  giving  credit  for  all  the 
payments  made  thereon  and  deductions  that  ought  to  be  made 
therefrom,  and  exhibiting  the  balance  justly  due  to  the  said 
Samuel  Andreus,  claimant,  from  the  said  John  Carpenter, 
viz. : 

(Set  out  bill  of  particulars,  as  in  other  cases,  for  all  the 
labor  and  materials  in  one  account,  and  showing  the  bal- 
ance justly  due,  and  then  proceed.) 

And  the  said  Samuel  Andreus,  claimant,  doth  hereby  di- 
vide and  apportion  the  same  among  the  said  buildings  in 
proportion  to  the  value  of  the  materials  furnished  to,  and 
the  labor  performed  for  each  of  said  buildings  and  doth 
state  the  amount  so  apportioned  to  each  such  building,  as 
follows,  viz. ; 

To  the  first  building,  and  its  lot  or  curtilage  above  described, 
the  sum  of  dollars  (and  so  in  each  other  case).^ 

All  the  above  labor  was  performed  and  materials  fur- 
nished, etc.  (concluding,  and  adding  verification,  as  in  Form 
'No.  8). 

1.  It  is  not  believed  that  the  statute  requires  that  the  claimant 
shall  set  out  in  his  lien  claim  a  detailed  statement  of  the  appor- 
tionment item  by  item;  or  that  even  in  his  proof,  in  an  action 
to  enforce  his  claim,  he  will  be  bound  to  show  the  precise  amount 
of  material  or  labor  that,  from  day  to  day,  was  bestowed  upon  each 
building.  There  is  no  harm,  however,  in  making  as  specific  a 
statement  as  may  ht^.  possible,  in  the  lien  claim. 

13.— Agreement  to  extend  time  of  suit.     ?  18. 

In  the  matter  of  the  lien  claim  filed  in  the  Bergen  County 
Clerk's  Office  by  Thomas  Romaine,  claimant  against  John 
Carpenter,  builder  and  owner,  for  a  debt  of  Five  Thousand 
Dollars,  it  is  hereby  agTeed  that  the  time,  in  which  such  lien 
may  be  enforced  by  summons,  be  extended  for  the  further 
period  of  four  months  after  the  expiration  of  tlie  time 
limited  by  the  statute  therefor. 
Dated,  etc. 

JOHN  CARPENTER,  Owner. 

THOMAS   ROMAINE,   Claimant. 


Forms.  189 

14. — Notice  to  sue  on  lien  claim.*     |  18. 

Bergeu  Coimtv  Clerk's  Office. 

Thomas  Romaine,  Claimant,    \ 

John  Carpenter,  Builder  and    j  ^'^^"^  ^■^^^^• 
Owner.  J 

To  Thomas  Romaine,  Claimant : 

You  are  hereby  required  to  commence  suit  to  enforce  the 
lien  claim  filed  by  you  in  the  Bergen  County  Clerk's  office, 
for  an  alleged  debt  of  Five  Thousand  Dollars,  and  entitled 
as  above,  within  thirty  days  from  the  service  of  this  notice 
upon  you. 

JOITN"  CARPEXTER,  Owner. 

Dated,  etc. 

^'Stee  Form  No.  30,  for  affidavit  of  service  of  this  notice,  to  be 
filed  in  order  to  discharge  lien  on  failure  of  claimant  to  sue. 

15.— Form  of  summonB.     ?  23. 

County  of  Bergeu,  ss. : 

The  State  of  New  Jersey  to  the 
(Seal.)  Sheriff  of  Our  County  of  Bergen, 

Greeting : 

Summon  Thomas  Romaine, 
builder,  and  John  Carpenter,  o^^Tier,  and  George  L.  Mott, 
mortgagee,  to  appear  before  the  Circuit  Court  in  and  for  the 
County  of  Bergen,  at  Hackensack,  in  the  said  County,  on 

the day  of that  the  said  Thomas  Romaine, 

John  Carpenter  and  George  L.  Mjott,  may  each  answer  unto 
Samuel  Andreus,  claimant,  in  an  action  upon  contract,  to 

the  damage  of  the  said  Samuel  Andreus,  the  sum  of 

dollars,  as  is  said,  for  which  the  said  Samuel  Andreus  claims 
a  building  lien  on  certain  buildings  and  lands  of  the  said 
John  Carpenter,  upon  which  the  said  George  L.  Mott  holds 
a  mortgage  of  record,  and  which  are  described  as  follows 
(describe  the  building  and  lands  as  in  the  lien  claim  on  file). 
Witness  Jonathan  Dixon,  Judge  of  said  Circuit  Court  at 
Hackensack,  in  said  Countv,  this  dav  of,  etc. 

J.  R.  R.,  Clerk. 
X.,  Y.,  Attorney. 


190  Mechanics  Lien  Law. 

16.— Service  of  summons.    Forms  of  returns. i     ^  23. 

Personal  service.    Duly  served  the  witliin  summons  on  the 
defendant,  A.  B.,  this  third  day  of  June,  1902. 

C.  E.  S.,  Sheriff. 

The  above  return  seems  to  be  all  that  is  necessary,  where  the  de- 
fendant is  a  resident  of  this  state,  whether  he  is  served  personally 
or  by  leaving  a  copy  at  his  residence;  since  either  of  those  modes 
of  service  are  due  service  of  process  on  such  a  defendant,  in 
order  to  warrant  a  general  judgment  against  him,  in  personam, 
or  a  special  judgment  against  his  lands  in  this  state;  and  in 
neither  case  is  any  affidavit  of  such  service  necessary. 

A  valid  judgment  in  personam  against  a  defendant  builder, 
not  resident  or  found  within  this  state,  is,  of  course,  impossible, 
since  the  decision  in  Pennoyer  v.  Neff,  95  U.  S.  714;  but  a 
special  judgment  against  the  lands  of  such  a  defendant  owner 
will  be  warranted  by  a  compliance  with  the  statut^jry  requirements, 
as  to  the  sei-vice  of  process  in  such  a  case.  See  Smith  v  Collotv 
40  Vroom  365. 

What  the  proper  practice,  in  such  case,  is,  is  by  no  means  so  free 
from  doubt  as  could  be  wished.  There  are  several  cases  to  con- 
sider, viz : 

(a)  Where  such  defendant's  residence  is  known  and  the  copy 
of  the  cummons  is 

(1)  served  upon  him  out  of  the  state  in  person;  or 

(2)  left  at  his  residence  out  of  the  state;   or 

(3)  mailed  to  his  nearest  post  office  address. 

In  cases  (a),  (1)  and  (2),  the  statute  is  plain,  that  the  copy 
must  be  affixed  to  the  building,  and  the  copy  served  or  left, 
all  at  least  ten  days  before  the  return  day  of  the  summons. 

In  case  (a)  (3),  it  is  far  from  certain,  but  it  is  sufficient,  per- 
haps, if  the  copy  is  affixed  to  the  building,  and  the  copy  mailed  to 
the  defendant,  at  least  ten  days  before  the  return  day;  but 

(b.)  Where  such  defendant's  residence  out  of  the  state  is  un- 
known, and  the  copy  of  the  summons  must  be  affixed  to  the 
building  and  also  published  for  four  weeks,  once  in  each  week, 
the  statute  leaves  us  at  a  loss  to  say  when  these  things  should 
be  done,  with  reference  to  the  return  day  of  the  summons.  Per- 
haps the  safe  course  is,  in  such  case  to  publish  for  five  weeks; 
to  have  the  fourth  publication  at  least  ten  days  before  the  return 
day;  and  to  have  the  copy  affixed  to  the  building  at  least  four 
weeks  before  the  return  day. 

The  statute  indicates  that  it  is  not  necessary  that  the  acts, 
which  constitute  service  upon  a  non-resident  defendant,  should  be 
performed  by  the  sheriff,  or  other  like  officer;  but  it  is  appre- 
hended that  if  they  are  performed  by  such  officer,  or  so  far  as 
they  are  performed  by  him,  in  any  case,  he  should  make  special 
return  accordingly,  by  affidavit.  An  attempt,  to  indicate  the 
points  that  should  be  covered,  is  made  in  the  following  forms  of 
affidavits  and  the  appended  remarks. 


Forms.  191 

actual,    service.       non-residenl%    whose    residence    is 

KNOWN. 

State  of  New  Jersey, 

ss. 


} 


County  of  Bergen, 

C.  R.  S.,  Sheriff- 
of  the  County  of  Bergen,  being  duly  sworn  on  his  oath 
says,  that  the  within  mentioned  defendant,  C.  D.,  is  not  a 
resident  of  this  State,  and  resides  at,  etc.,  in  the  City  of 
Albany,  in  the  State  of  'New  York,  as  deponent  is  informed 
and  believes  ;^  that  the  said  defendant  cannot  be  found  in  this 
State,  and  that  deponent  therefore  served  the  within  summons 
on  him,  by  affixing  a  copy  thereof  on  the  building,  within 
mentioned,  on  the  second  day  of  June,  Nineteen  Hundred 
and  Two,  being  ten  days  before  the  return  of  said  summons, 
and  also  on  the  same  day  serving  a  copy  thereof  on  such  de- 
fendant personally  (or,  by  leaving  a  copy  thereof  at  the  said 
residence  of  the  said  defendant). 

Jurat.  C.  R.  S.,  Sheriff. 

*This  affidavit  may  be  made  by  a  person  other  than  the  sheriff. 

1.  It  is  advisable  for  this  affidavit  to  state  specifically  where  the 
residence  is;  that  it  is  known  to  be  defendant's  residence;  and 
what  the  sources  of  such  knowledge  are.  Where  such  sources  are 
the  statements  of  others  their  affidavits  also  should  be  annexed. 

LEGAL    SERVICE.        NON-RESIDENT    DEFENDANT^    WHOSE     RESI- 
DENCE IS  KNOWN. 

State  of  New  Jersey,    1 
County  of  Bergen,      J    ^" 

C.  R.  S.,  Sheriff* 
of  the  County  of  Bergen,  being  duly  sworn,  on  his  oath,  says, 
that  the  within  mentioned  defendant,  C.  D.,  is  not  a  resi- 
dent of  this  State,  but  resides  at,  etc.,  in  the  City  of  Albany, 
in  the  State  of  New  York,  as  deponent  is  informed  and  be- 
lieves ;^  that  the  said  defendant  cannot  be  foitnd  in  this 
State,  and  that  deponent  therefore  served  the  within  sum- 
mons on  him,  by  affixing  a  copy  thereof  upon  the  building, 
within  mentioned,  on  the  second  day  of  June,  Nineteen  Hun- 
dred and  Two,  being  more  than  four  weeks  before  the  return 
day  of  said  summons,  and  also  on  the  same  day  sending  a 
copy  thereof,  by  mail,  to  the  said  defendant,  directed  to  him 


192  Mechanics  Lien  Law. 

at  the  post  office  address  neiirest  his  said  residence,  and  with 
the  postage  prepaid  thereon. 

Jurat  C.  K.  S.,  Sheriff. 

*This  affidavit  may  be  made  by  a  person  other  than  the  sheriff. 
1.  See  note  1  to  the  preceding  form. 

LEGAL      SEKVICE.         NOlSr-RESIDENT     DEFENDANT^       RESIDENCE 

UNKNOWN. 

State  of  New  Jersey,    1 

County  of  Bergen,      j    " " ' 

C.  R.  S.,  Sheriff* 
of  the  County  of  Bergen,  being  duly  sworn,  on  his  oath,  says, 
that  the  within  mentioned  defendant,  C.  D.,  is  not  a  resident 
of  this  State,  as  deponent  is  informed,  and  believes  ;^  that  his 
residence  and  post  office  address  is  imknown,  that  the  said 
defendant  cannot  be  found,  in  this  State,  and  that  deponent 
therefore  served  the  within  summons  on  him,  by  affixing  a 
cojw  thereof  to  the  building  within  mentioned,  on  the  second 
day,  etc.,  being  more  than  four  weeks  before  the  return  day 
of  said  summons,  and  also  by  inserting  a  copy  thereof  for 
four  weeks,  once  in  each  week,  in  ,  a  newspaper  of  this 

State,  published  and  circulating  in  the  County  of  Bergen, 
where  the  said  building  is  situated. 

Jurat.  C.  R  S.,  Sheriff". 

*This  affidavit  may  be  made  by  a  person  other  than  the  sheriff. 

1.  Annex  any  other  affidavits  that  will  show  the  fact  of  such 
non-residence. 

It  is  advisable,  if  not  necessary,  that  an  affidavit  should  also 
be  attached,  in  this  case,  to  show  that  due  but  fruitless  inquiry  has 
been  made  for  the  residence  of  such  owner. 

This  affidavit  must,  also,  be  accompanied  by  the  follow- 
ing affidavit : 

State  of  i!^ew  Jersey,     \ 
County  of  Bergen,      )  ®*'  * 

A.  B.,  of  full  age,  being  duly 
sworn,  on  his  oath,  says ;  that  he  is  the  editor  (or,  as  tlie  case 
may  be)  of  the  ,  a  newspaper  printed  and  circulated 

at  ,  in  the  County  of  Bergen,  and  that  the  copy  of  a 


FoKMs.  193 

summons  hereto  annexed  was  inserted  and  published  in  the 
said  newspaper,  for  four  weeks  successively,  once  in  each 
week,  commencing  on  the  6th  day  of  June  a.  d.  Nineteen 
Hundred  and  Two,  namely  on  the  Gth,  13th,  20th  and  27th 
days  of  said  month  of  June. 

Jurat.  A.  B. 

17.— Form  of  declaration,  on  common  counts.^     §  24. 

Bergen  County  Circuit   Court, 
of  the  dav  of 

in  the  vear 
Bergen  County,  ss.: 

Thomas  Romaiue,  builder,  John  Carpenter,  owner,  and 
George  L.  Mott,  mortgagee,  the  defendants,  in  this  suit,  were 
summoned  to  answer  unto  Samuel  Andreus,  the  plaintiif 
herein,  in  an  action  uix>n  contract,  the  summons  having  l>een 
duly  served,  by  the  sheriff  of  the  County  of  Bergen,  on  the 
said  Thomas  Romaine,  John  Carpenter  and  George  L.  Mott; 
the  said  George  L.  Mott  being  made  a  party  defendant,  be- 
cause he  holds  a  mortgage  of  record  against  the  property 
affected  by  the  claim,  to  enforce  which,  this  suit  is  brought, 
which  would  be  cut  oft"  by  a  sale,  under  such  claim ;  where- 
upon the  said  Samuel  Andreus,  by  X.  Y.,  his  attorney,  com- 
plains that  for  whereas  the  said  defendant,  Thomas  Ro- 
maine, heretofore,  to  wit,  on  the,  etc.  (make  the  date  a  day  or 
two  before  the  lien  claim  was  filed),  at,  etc.  (venue),  was  in- 
debted to  the  plaintiff  in  the  sum  of  (double  the  debt)  dollars 
for  the  work  and  labor,  care  and  diligence  of  the  said  plain- 
tiff, by  the  said  plaintiff  before  that  time  done,  performed 
and  bestowed  for  the  said  defendant,  and  at  his  special 
instance  and  request,  and  also  for  divers  materials  and 
otlier  necessary  things  by  the  said  plaintiff  before 
that  time  found,  provided,  used  and  applied  in  and 
about  that  work  and  labor  for  the  said  defendant,  and  at  his 
special  instance  and  request ;  and  in  the  furtlier  sum  of 
(same  as  before)  dollars,  for  goods,  wares  and  merchandise, 
sold  and  delivered  by  said  plaintiff  to  the  said  defendant, 
Thomas  Romaine,  at  his  special  instance  and  request ;  and 
in  the  like  sum  of  money  for  money  lent  by  the  plaintiff  to 
the  said  defendant,  Thomas  Romaine,  at  his  special  in- 
stance and  request ;   and  in  the  like  sum  of  money  for  interest 

18 


194  Mechanics  Lien  Law. 

due  from  the  said  defendant,  Thomas  Ptomaine,  to  the  plain- 
titf,  for  moneys  before  then  lent  by  the  plaintiff  to  the  said 
defendant  at  his  special  instance  and  request,  and  at  the 
like  instance,  and  request  foreborne  by  the  plaintilf  for  a 
long  time  then  elapsed ;  and  in  the  like  sum  of  money,  for 
money  found  to  be  due  from  the  said  defendant,  Thomas 
Romaine,  to  the  plaintiff,  on  an  account  then  and  there  stated 
between  them ;  and,  being  so  indebted,  he,  the  said  defendant, 
Thomas  Romaine,  in  consideration  thereof,  afterwards,  to 
wit,  on  the  day  and  year  last  aforesaid  at  (venue)  under- 
took and  promised  to  pay  the  said  several  sums  of  money  to 
the  plaintiff,  on  request,  yet  the  said  defendant,  Thomas 
Romaine,  has  disregarded  his  promise  and  has  not  paid  any 
of  the  said  moneys  or  any  part  thereof,  to  the  plaintiff's 
damage  dollars.     And  therefore  he  bring-s  his  suit,  etc. 

And  the  said  plaintiff  avers,  and  in  fact  says,  that  the  said 
debt  is,  by  virtue  of  the  provisions  of  an  act  of  the  Legisla- 
ture, entitlded,  "An  act  to  secure  to  mechanics  and  others 
payment  for  their  labor  and  materials  in  erecting  any  build- 
ing," approved  June  14,  1898,  and  the  supplements  thereto, 
a  lien  on  a  certain  building  and  curtilage  described  as  fol- 
lows (describe  building  and  curtilage  as  in  lien  claim)  : 

And  the  plaintiff  further  avers  that  the  said  defendant. 
George  L.  Mott,  holds  a  mortgage  (describe  the  mortgage  by 
the  parties  thereto,  its  date  of  record,  and  the  amount  secured 
by  it,  and  also,  if  such  be  the  case,  state  its  assig-nment  to  the 
defendant;  and  thou  proceed)  which  said  mortgage  pur- 
ports to  be  an  encumbrance  upon  the  lands  and  buildings 
above  mentioned  and  by  virtue  of  which  the  said  George  L. 
Mott,  claims  to  hold  a  lien  thereon,  but  the  plaintiff  avers 
that  the  lien  of  the  debt  so  due  to  the  plaintiff,  as  aforesaid,  is 
paramount  to  the  lien  of  said  mortgage,  upon  the  said  land 

and  building. 

X.  Y., 

Attomev  of  the  Plaintiff. 

1.  If  the  indebtedness  is  based  upon  an  express  contract,  not 
under  seal,  a  special  count  may  be  inserted,  if  desired,  before  the 
common  counts. 

If  the  express  contract  be  under  seal,  the  declaration  must  b< 
framed  as  in  debt  and  not  in  assumpsit,  of  course.  It  it  not  wise 
to  omit  a  special  count  upon  an  express  contract;  and  it  is  import- 
ant, in  such  a  count,  when  it  is  used,  to  aver  generally  the  per- 


Forms.  195 

formance  of  all  conditions  precedent.  See  Dimich  v.  Metropolitan 
Ins.  Co.,  38  Vroom  367;  Stewart  Co.  v.  Trenton  Co.,  42  Vroom 
568. 

In  a  proper  case,  there  should  also  be  a  quantum  meruit  count. 

The  fullowing  is  a  bill  of  particulars  of  the  wurk  and  la- 
bor performed  and  materials  furnished  for  the  said  defend- 
ant, Thomas  Komaine,  by  the  said  plaintiff,  and  for  -which 
tliis  action  is  brought  (here  set  out  tlie  bill  of  particulars  as 
stated  in  the  lien  claim). 

18.— Declaration  by  contractor,  on   a    sealed    conti'act.i 
I  24. 

Bergen  County  Circuit  Court  of 
the  day  of  in  the  year 

Nineteen  Hundred   and   three. 
Bergen  County,  ss.: 

John  Carpenter,  builder  and  owner,  and  George  L.  Mott, 
mortgagee,  the  defendants  in  this  suit  were  sunnnoned  to  an- 
swer unto  Thomas  Romaine,  the  plaintiff  herein,  in  an  ac- 
tion upon  contract,  the  summons  having  been  duly  served 
by  the  sheriff  of  the  county  of  Bergen  upon  each  of  the  said 
defendants,  and  the  said  George  L.  Mott  being  made  a  party 
defendant  because  he  holds  a  mortgage  of  record  against  the 
property  affected  by  the  claim  to  enforce  which  this  suit,  is 
brought,  which  would  be  cut  off'  by  a  sale  under  said  claim ; 
and  thereupon  the  plaintiff,  by  his  attorneys,  X.  Y.,  com- 
plains of  the  said  John  Carpenter  tliat  he  vender  to  the 
plaintiff  the  sum  of  Ten  Thousand  Dollars  (double  the 
amount  of  the  real  debt,  see  note  2,  below)  which  he  owes 
and  unjustly  detains  from  him :  for  that  whereas  heretofore, 
to  wit,  on,  etc.  (date  of  contract)  at,  etc.  (venue),  by  a  cer- 
tain indenture  then  and  there  made  between  the  said  plain- 
tiff, of  the  one  p:irt,  and  the  said  defendant,  John  Carpenter, 
of  the  other  part,  which  said  indenture,  sealed  with  the  seal 
of  the  said  defendant,  the  said  plaintiff  uoav  brings  here  into 
court,  and  a  co])y  whereof  is  hereto  annexed  and  referred  to 
and  made  part  of  this  declaration,  the  said  defendant,  J.  C, 
did,  for  himself,  his  heirs,  executors  and  administrators,  cove- 
nant, promise  and  agree  to  and  with  the  said  plaintiff,  his  ex- 
ecutors, administrators,  and  assigns,  that  if  he,  the  said  plain- 
tiff, would   well   and    sufRcientlv   erect   and   finish   a   certain 


196  Mechanics  Lien  Law, 

building  in  said  indenture  mentioned,  then  lie  the  said  defend- 
ant, J.  C,  his  heirs,  executors,  and  administrators,  or  some  or 
one  of  them,  should  and  would  well  and  truly  pay  or  cause  to 
be  paid  unto  the  plaintiff  the  sum  of  Fifteen  Thousand  Dol- 
lars in  the  manner  and  at  the  times,  mentioned  and  ap- 
pointed for  the  payment  thereof  in  and  by  the  said  indenture; 
and  although  the  plaintiff  thereafter,  viz. :  on  the,  etc,  (date  of 
completion  of  building)  at,  etc.  (venue)  did  well  and  suffi- 
ciently erect  and  finish  the  said  building  and  did  fully  per- 
form all  the  matters  and  things  by  him  to  be  performed  ao 
cordiug  to  the  tenor  and  effect  of  the  said  indenture ;  never- 
theless the  said  defendant,  J.  C,  did  not  nor  would  well  and 
truly  pay  or  cause  to  be  paid  unto  the  said  plaintiff  the  said 
sum  of  Fifteen  Thousand  Dollars  in  the  manner  and  at  the 
time  mentioned  and  appointed  for  the  payment  thereof,  as 
aforesaid,  but  therein  failed  and  made  default,  and  there  is 
now  due  and  owing  from  the  said  defendant,  J.  C,  to  the  said 
plaintiff  for  and  on  account  of  the  said  sum  of  Fifteen  Thou- 
sand Dollars,  a  large  sum  of  money,  to  wit,  the  sum  of  Five 
Thousand  Dollars  (the  true  debt  without  interest) 
which  said  sum  of  Five  Thousand  Dollars  the  said 
defendant,  J.  C,  on  the,  etc.,  (make  the  date  just  previous 
to  the  date  when  the  lien  claim  was  filed)  at,  etc.  (venue) 
agreed  tx3  pay  unto  the  plaintiff  when  thereunto  afterwards 
requested ;  whereby  an  action  had  accrued  to  the  said  plain- 
tiff to  demand  and  have  of  and  from  the  said  defendant,  J. 
C,  the  said  sum  of  Five  Thousand  Dollars,  parcel  of  the  said 
sum  of  money  alx)ve  demanded  (that  is,  first  above  de- 
manded). 

And  whereas  also  the  said  defendant,  J.  C,  afterwards,  to 
wit,  on  the  date  last  above  mentioned  at,  etc.  (venue),  was  in- 
debted to  the  said  plaintiff  in  the  sum  of  Five  Thousand 
Dollars  for  the  work  and  labor,  care  and  diligence  of  the 
plaintiff'  before  that  time  done,  performed  and  bestowed  for 
the  said  defendant,  J.  C,  and  at  his  special  instance  and  re- 
quest, and  also  for  divers  materials  and  other  necessary  things, 
by  the  plaintiff  before  that  time  found  and  provided  in  and 
about  that  work  and  labor  for  the  defendant,  J.  C,  and  at  his 
like  special  interest  and  request,  and  to  be  paid  by  the  said 
defendant  to  the  said  plaintiff  when  he,  the  said  defendant 
should  Ik*  thereunto  afterwards  requested : 

And  in  the  like  smn  of  money  for  goods,  wares,  and  mer- 


Forms.  197 

cliandise  sold  and  delivered  to  the  said  defendant,  T.  C,  and 
at  his  special  instance  and  reqnest,  by  the  said  plaintiff,  and 
to  be  paid  by  the  said  defendant  to  the  said  plaintiff  when  he 
the  said  defendant  should  ]ye  there  afterwards  requested. 

And  in  the  like  sum  of  money  for  money  lent  by  the  plain- 
tiff to  the  said  defendant,  J.  C,  at  his  special  instance  and 
request,  and  to  be  paid  by  the  said  defendant  to  the  said 
plaintiff  when  he,  the  said  defendant,  should  be  thereunto 
afterwards  requested : 

And  in  the  like  sum  of  money  for  money  paid,  laid  out, 
and  expended  by  the  plaintiff  for  the  said  defendant,  J.  C, 
and  at  his  special  instance  and  request  to  be  paid  by  the  said 
defendant  to  the  said  plaintiff  when  he,  the  said  defendant 
should  be  thereunto  afterwards  requested : 

And  in  the  like  sum  of  money  for  money  had  and  received 
by  the  defendant,  J.  C,  to  tlie  use  of  the  plaintiff,  and  to  be 
paid  by  the  said  defendant  to  the  said  plaintiff  when  he,  the 
said  defendant  should  be  thereunto  afterwards  requested. 

And  in  the  like  sum  of  money  for  interest  due  from  the 
said  defendant,  J.  C,  to  the  plaintiff  for  moneys  before  then 
lent  by  the  plaintiff  to  the  defendant,  J.  C,  at  his  special  in- 
stance and  request,  foreborne  by  the  plaintiff  for  a  long  time 
then  elapsed,  and  to  be  paid  by  the  said  defendant  to  the  said 
plaintiff  when  he,  the  said  defendant  should  be  thereunto  af- 
terwards requested : 

And  in  the  like  sum  of  money,  for  money  found  to  be  due 
from  the  said  defendant,  J.  C,  to  the  said  plaintiff,  on  an  ac- 
count then  and  there  stated  between  them,  and  to  be  paid  by 
the  said  defendant  to  the  said  plaintiff  when  he,  the  said  de- 
fendant, should  be  thereunto  aftel'^^'ards  requested : 

Wherebv  and  by  reason  of  the  said  last  mentioned  sum? 
of  money  being  and  remaining  wholly  unpaid,  an  action  hath 
accrued  to  the  said  plaintiff  to  demand  and  have  of  and  froni 
the  said  defendant,  J.  C,  the  sum  of  Ten  Thousand  Dollars 
first  above  demanded. 

Yet  the  said  defendant,  J.  C,  although  often  requested  so 
to  do,  has  not  as  yet  paid  the  said  sum  of  Ten  Thousand  Dol- 
lars, above  demanded  or  any  part  thereof,  to  the  said  plain- 
tiff, but  to  do  this  hath  hitherto  refused  and  still  doth  refuse 
to  the  damage  of  the  plaintiff  of  One  Thousand  Dollars,^  and 
therefore  he  brings  his  suit. 


198  Mechanics  Lien  Law. 

(Add  averment  that  debt  is  a  lieu  and  averment  as  to 
mortgagee  as  in  Form  17,  supra ;  and  annex  bill  of  particu- 
lars and  copy  of  contract.) 

1.  This  form  has  been  drawn  to  conform  to  the  contract  set 
out  in  form  No.  1;  and  the  lien  claim  as  given  in  form  No.  8. 

In  a  case,  such  as  the  one  so  supposed,  the  declaration  must  be 
in  debt  because  the  contract  is  sealed.  The  special  count  could, 
however,  be  dispensed  with;  as  the  declaration  would  be  good  if 
only  the  common  counts  were  used;  and  not  all  of  them  need  to 
be  used.  It  is  not  wise,  however,  to  omit  a  special  count.  See 
note  to  form  No.  17. 

2.  This  amount  should  be  the  aggregate  of  all  the  sums  men- 
tioned in  the  different  counts;  but  an  arbitrary  amount  may  be 
taken  instead;  and,  as  the  siunmons  will  lay  damages  at  double 
the  real  debt  demanded,  that  sum  may  be  taken. 

3.  This  amount  may  be  any  sum  less  than  the  aggregate 
demanded.  It  should  be  enough  to  cover  the  interest  to  which 
the  plaintiff  may  be  entitled. 


10.— Pleas  by  owner.    I  24. 

Bergen  County  Circuit  Court. 

Samuel  Andrens  "| 

V.  VOn  Contract. 

Thomas  Romaine  et  al.  ) 

And  the  said  defendant,  John  Carpenter,  by  X.  Y.,  his  at- 
torneys, comes  and  defends  the  wrong  and  injury  when,  etc., 
and  says  that  the  said  Thomas  Romaine,  builder,  did  not 
undertake  nor  promise,  in  manner  and  form,  as  the  said 
plaintiff  hath  above  thereof  complained  against  him,  and 
of  this  he  puts  himself  upon  the  country : 

And  for  a  further  plea  in  this  behalf,  by  leave  of  the 
court  here  for  that  purpose  first  had  and  obtained,  according 
to  the  form  of  the  statute  in  such  case  made  and  provided, 
the  said  defendant  says  that  the  said  plaintiff  ought  not  fur- 
ther to  have  or  maintain  his  aforesaid  action  thereof  against 
him  and  against  said  building  and  lands  in  the  declaration 
above  mentioned  and  describ^ ;  because  he  says  that  said 
building  and  lands  are  not  liable  to  the  said  supposed  debt 
in  manner  and  form  as  the  plaintiff  hath  above  thereof  com- 


FOKMS.  109 

plained  against  liim.  and  of  this  he  puts  himself  upon  the 
country : 

(Add  any  other  plea  which  the  builder  might  have.) 

(Signature  of  Attorney.) 

VERIFICATIOX^  *Pr.  Act.   §   114. 

State  of  I^ew  Jersey,    \ 

County  of  Bergen,      j  ^  •• 

John  Carpenter,  of  full 
age,  being  duly  sworn  on  his  oath  according  to  law^  says  that 
he  is  the  above  named  defendant  and  that  the  foregoing  plea 
is  not  intended  for  the  purpose  of  delay  and  that  affiant 
verily  believes  that  he,  the  said  defendant,  hath  a  just  and 
legal  defense  to  said  action  on  the  merits  of  the  case. 

"(Jurat.)  (Signature.) 

*In  the  absence  of  the  defendant,  this  affidavit  may  be  made  by 
the  defendant's  attorney  or  agent,  Pr.  Act,  §  114;  and  can  be 
readily  varied  in  such  case,  accordingly. 

20.— Pleas  by  mortgage  ®     I  24. 

(The  mortgagee  may  have  tlie  same  pleas  that  the  owner 
may  have,  and  the  following  plea  in  addition.) 

And  for  a  further  plea  in  this  behalf,  here  by  like  leave 
of  the  court  for  that  purpose  had  and  obtained,  etc.,  the  said 
defendant,  Georg-e  L.  ^^fott,  says  tliat  the  plaintiff  (actio 
non,  as  before),  because  he  says,  that  the  pretended  lien 
claim  of  the  said  plaintiff,  whereof  mention  is  above  in  his 
declaration  made,  is  not  paramount,  but  is  subject  to  the 
lien  of  the  said  defendant's  mortgage,  above  in  said  declara- 
tion mentioned;  and  of  this  he  puts  himself  upon  thej;on-, 
trary. 
'     "~  (Signature  of  Attornev.) 

(Add  verification.) 

21.— Rule  for  judgment  by  default.    \  24. 

(Title  of  cause.) 

The  summons  in  the  above  stated  cause  liaving  been  duly 
served  on  the  defendant,  Thomas  Romaine,  builder  ••'  and 
on  tlie  other  defendants,  J.  C.  etc.,  in  the  manner  and  forai 
required  by  law%  and  the  plaintiff'  having  filed  his  declaration 


200  Mechanics  Lien  Law. 

within  the  time  limited  by  law  for  filiug  the  same,  and  none 
of  the  said  defendants  having  filed  any  plea  or  demurrer,  or 
entered  any  rule  for  a  writ  of  inquiry  or  for  assessment  of 
damages  in  open  court  within  the  time  required  by  law  there- 
for, nor  at  any  other  time,  it  is,  therefore,  on  this  day  of 
,  in  the  year  ,  ordered  that  judgment  interlocu- 
tory by  default  be  entered  in  favor  of  said  plaintiff  and 
against  said  defendants  (naming  all  of  them).  And  the 
clerk  of  this  court  having  this  day  duly  assessed  the  damages 
of  the  said  plaintiff  at  the  sum  of              dollars. 

It  is,  tlierefore,  on  the  day  and  year  aforesaid,  further 
ordered  that  judgment  final  for  the  said  sum  of  dol- 

lars damages,  with  costs  to  be  taxed,  be  entered  in  favor  of 
the  plaintiff  generally  *  against  the  said  defendant,  Thomas 
Romaine,  builder  (or,  builder  and  owner,  if  that  be  the 
fact),  and  sj^ecially  to  be  made  of  the  lands  and  buildings 
in  said  declaration  described. 

(If  there  be  a  mortgagee  defendant,  add — ) 

And  it  is  further  adjudged  that  the  lien  claim  of  the  said 
plaintiff  is  prior  to  tlie  lien  of  the  said  mort|!:age  of  the  said 
defendant,  George  L,  Mott  (or,  vice  versa,  as  the  case  mav 
be). 

Rule  entered,  etc. 

*If  the  summons  is  not  served  upon  the  builder  by  "actual  ser- 
vice" within  the  jurisdiction,  and  he  has  not  appeared  generally 
and  submitted  to  the  jurisdiction,  there  can  be  no  general  judg- 
ment against  the  builder  and  the  rule,  in  that  case,  must  be 
varied  accordingly. 

22.— Rule  for  judgment  on  verdict.*    §  24. 

Berg^en  County  Circuit  Court. 

(Title  of  Cause.) 

The  issues  joined  in  this  cause  having,  at  the  current 
tenn  of  this  court,  been  regularly  tried  by  a  jury  who,  aftor 
retiring  to  consider  of  their  verdict,  come  again  into  court 
and  say  that  as  to  the  issue  joined,  on  the  first  plea  by  each 
of  the  said  defendants  pleaded,  they  find  that  the  said 
Thomas  Romaine  did  promise  in  manner  and  form  as  the 
plaintiff  hath  within  in  his  said  declaration  complained 
against  him  and  tbey  assess  the  damages  of  the  said  Samuel 
Andreus  on  occasion  of  the  non  performance  of  said  promise, 


Forms.  201 

over  and  above  his  costs  and  charges,  etc.,  to  dollars ; 

and  as  to  the  issue  joined  on  the  second  plea,  by  each  of  the 
said  defendants  above  pleaded,  they  find  that  the  said  build- 
ing and  lands  in  the  plaintiff's  declaration  mentioned  and 
described  are  liable  in  manner  and  fonii  as  the  plaintiff  hath 
therein  complained ;  and,  as  to  the  issue  joined  on  the  third 
plea,  by  the  defendant,  George  L.  Mott  above  pleaded,  they 
fijid  that  the  lien  claim  of  the  said  plaintiff  in  the  plaintiff's 
declaration  mentioned  is  paramount  to  the  said  mort- 
gage of  the  said  defendant,  as  the  plaintiff  hath  therein 
complained : 

And  it  appearing  that  the  summons  in  this  cause  was  not 
duly  served  upon  the  defendant,  Thomas  Komaine,  but  was 
duly  served  upon  all  the  other  defendants  therein  named : 

It  is,  therefore,  ordered  that  judgment  final  in  favor  of 
the  said  plaintiff,  for  the  said  sum  of  dollars,  besides 

his  costs  of  suit,  to  be  taxed,  b©  entered,  but  only  to  be  made 
specially  of  the  lands  and  building  in  the  said  declaration 
described:    Unless,  etc. 

Rule  entered,  etc. 

*This  rule  is  drawn  for  the  case,  where  the  builder  is  not 
actually  served  with  the  summons  within  the  jurisdiction,  and 
files  no  plea,  and  does  not  otherwise  appear;  and  the  owner  pleads, 
non  assimipsit;  and  lands  not  liable;  and  the  mortgagee  pleads, 
separately,  non  assumpsit;  lands  not  liable;  and  mortgage  para- 
mount. 

23. — Judgment  on  verdict,    i  24. 

(The  judgment  record  after  setting  out  the  pleadings,  and 
thus  stating  the  issues,  and  after  reciting  the  award  of  the 
venire,  etc.,  should  proceed — ) 

And  the  jurors  of  the  jury  whereof  mention  is  made  come 
also,  who  to  speak  the  truth  of  the  matter  within  contained 
being  chosen,  tried,  and  sworn  upon  their  oaths  say  (here 
state  the  verdict  as  particularly  as  may  be  needful ;  see  Sec. 
24,  Note  6,  and  the  last  preceding  form,  Xo.  22,  and  after 
so  stating  the  verdict,  according  to  its  legal  effect,  proceed — ) 

And  it  having  been  made  to  appear  that  the  summons  was 
duly  served  on  all  of  the  said  defendants.^ 

Therefore  it  is  considered  that  the  said  plaintiff  do  recover 
generally  against  the  said  defendant,  Thomas  Romaine, 
builder,  and  specially  to  be  made  of  the  lands  and  building 


202  Mechanics  Lien  Law. 

in  the  said  declaration  mentioned  and  described,^  the  sum 
of  dollars,  etc.,  for  bis  damages    (if  the  pleading  be 

in  debt,  then  vary  the  record  accordingly)  by  the  jnrors 
aforesaid  assessed,  and  also  the  sum  of  dollars,  etc.,  for 

his  said  costs  and  charges  by  the  court  now  here  adjudged 
of  increase  to  the  said  plaintiff  and  with  liis  assent,  which 
said  damages,  costs  and  charges,  in  the  whole,  amount  to  tlie 
sum  of  dollars,  etc.     And  the  said  defendant,  Thomas 

Romaine,  in  mercy. 

And  it  is  further  considered  and  adiudiicd  that  the  lieu  of 
the  plaintiff  upon  the  said  lands  and  buildings,  in  the  declar- 
ation mentioned  and  described,  for  the  sum  of  dol- 
lars, ete.,  last  above  mentioned  so  as  aforesaid  adjudged  to 
him,  is  prior  and  paramount  to  the  lien  of  the  said  mort- 
gage of  the  said  defendant,  George  L.  ^Mott.  in  the  said  declar- 
ation mentioned. 

1.  This  recital  is  deemed  to  be  important.  See  Ennis  v.  Eden, 
etc.  Co.,  36  Vroom  677,  585. 

2.  If  only  a  special  judgment  is  awarded  because  of  want  of 
due  service  on  the  builder;  or  if  the  plaintiff  chooses,  as  he  may 
(see  §  24,  note  6),  to  take  only  a  special  judgment,  this  clause 
will  read — Therefore  it  is  considered  that  the  said  plaintiff  do 
recover,  but  only  to  be  made  specially  of  the  lands,  etc.,  the  sum 
of,  etc.  If  the  plaintiff,  being  entitled  to  enter  judgment  both 
generally  and  specially,  means  to  enter  the  one  and  waive  the 
other,  such  waiver  may  properly  be  recited  in  the  record  before 
the  ideo  consideratum  est  clause. 

24.    Form  of  execution  (general  and  special).    ?  27. 

Bergen  County,  ss. 

The  State  of  Xew  Jersey  to  the 
(Seal.)  Sheriff  of  the  county  of  Ber- 

gen, greetino-: 
We  command  you  that,  of  the  goods  and  chattels  of  Thomas 
Romaine,  builder,  in  your  county,  you  cause  to  be  made  the 
sum  of  dollars  and  cents  (the  total  of  the  judg- 

ment for  debt  and  costs)  which  Samuel  Andreus,  lately  in 
our  Circuit  Cburt,  held  at  Hackensack,  in  and  for  said 
county  of  Bergen,  recovered  against  the  said  Thomas  Ro- 
maine, builder,  as  well  for  his  damages  which  he  had  sus- 
tained on  occasion  of  the  non-performance  of  certain  prom- 
ises and  undertakings  by  the  said  Thomas  Romaine,  builder. 


Forms.  203 

then  lately  made  to  the  said  Samuel  Andreus,  as  for  liis 
costs  and  charges  by  him  about  his  suit  in  tha,t  behalf  ex- 
pended, whereof  the  said  Thomas  Romaine,  builder,  is  con- 
victed as  appears  to  us  of  record,  and  if  sufficient  goods  and 
chattels  of  the  said  Thomas  Romaine,  builder,  in  your 
county,  you  cannot  find  whereof  to  make  the  damages  afore- 
said, then  in  that  case  we  command  you  that  you  cause  the 
whole  or  the  residue,  as  the  case  may  require,  of  the  damages 
aforeseaid,  to  be  made  of  the  lands,  tenements,  heredita- 
ments and  real  estate  of  the  said  Thomas  Romaine  in  your 
county,  whereof  he  was  seized  on  the  day  of 

in  the  year  (the  date  of  the  judgment)  in  whoseso- 

ever hands  the  same  may  be;  and  we  especially  command 
you,  that  in  case  you  do  not  make  the  damages  aforesaid, 
othenvise,  that  you  make  the  whole  or  residue,  as  the  case 
may  require,  of  the  damages  aforesaid,  of  the  following  do- 
scribed  lands,  tenements  and  real  estate  of  the  said  John 
Carpenter,  owner,  viz. :  (describe  the  building  and  lauds  as 
in  lien  claim). 

And  have  you   those  moneys  before  our   Circuit   Court 
aforesaid,  at  Hackensack,  aforesaid,  the  day  of 

next,^  to  render  unto  the  said  Samuel  Andreus  for  his  dam- 
ages aforesaid ;    and  have  you  then  and  there  this  writ. 

Witness,  Jonathan  Dixon,  Esq.,  Judge  of  our  said  Cir- 
cuit   Court,    at    Hackensack,    aforesaid,    the  day    of 
,  in  the  vear  of  our  Lord,  etc. 

J.  R.  R.,  Clerk. 

X.  Y.,  Attorney. 

1.  See  §  29  ante,  note  2. 

25.— Caveat  against  lien  claim  by  owner  or  claimants. i 
I  29. 

Bergen  County  Clerk's  office. 

Samuel   Andreus,    Claimant,   ^ 

rp,  -D        •         -D   'ij         y  Lien  Claim. 

Thomas    Romame,    Guilder,    C 

John  Carpenter,  0^vner.  ) 

T,  John  Carpenter,  owner  (or  we,  A.  B.,  C.  D.,  etc.,  claim- 
ants owning  together  one-third  of  the  lien  claims,  filed 
against  the  building  in  the  above  entitled  lien  claim  men- 


204  MECHAisrics   Lien  Law. 

tioned)  do  hereby  warn  and  notify  all  persons  who  may  be 
concerned  that  we  object  to  the  said  claim  of  the  said 
Samuel  Andreus  in  said  lien  claim  set  forth,  and  to  any  pay- 
ment thereof,  in  whole  or  in  part,  until  his  said  claim  shall 
have  been  established  by  a  special  judgment  thereon. 

(Signatures  of  Caveaters.) 

1.  There  should  be  a  separate  caveat,  filed  in  the  county  clerk's 
office,  against  each  lien  claim  which  it  is  desired  to  object  to. 

26. — Petition  for  distribution  of  proceeds  of  sale  among 
concurrent  claimants.     ?  29. 

Bergen  County  Circuit  Court. 
Samuel  Andreus,  Claimant,^    ^ 

V 

Thomas  Romaine,  Builder,        }  ?''  ^^^^J^Tact  on 
John  Carpenter,  Owner,  I  ^^^^^  ^^^^™- 

George  L.  Mott,  Mortgagee.   J 

To   His   Honor,    Jonathan   Dixon,    Judge   of   said   Circuit 

Court : 

Your  petitioner,  William  Stiles,  respectfully  shows  that, 
heretofore,  to  wit,  on  the  day  of,  etc.,  the  said  Samuel 

Andreus  recovered  judgment,  in  the  above  entitled  cause,  on 
a  lien  claim  filed  by  him  in  the  Bergen  County  Clerk's  office 
on  the  day  of,  etc.,  for  the  sum  of  dollars,  etc., 

specially  to  be  made  of  the  lands  and  building  hereinafter 
mentioned  and  described,  as  by  the  record  of  said  judgment 
appears : 

That  thereupon  an  execution  out  of  said  court  was  issued 
in  the  words  and  figures  following,  viz. : 

(Here  set  out  the  execution  in  full.) 

That  thereafter  the  said  sheriff  (naming  him),  duly  sold 
the  lands  and  buildings  above  mentioned,  according  to  the 
command  of  said  execution  and  in  the  manner  prescribed 
by  law,  and  that  the  proceeds  of  such  sale,  after  deducting 
the  cost  and  expense  thereof,  including  the  sheriff's  fees, 
and  amounting  to  the  sum  of  dollars,  were  thereafter, 

to  wit,  on  the  day  of,  etc.,  by  the  sheriff,  paid  to  the 

clerk  of  this  court  ^  to  be  distributed  among  the  claimants 
entitled   thereto:  that  your   petitioner,   on  the 

day  of,  etc.,  filed  his  lien  claim  against  the  said  land  and 


FoKMs.  205 

building,  and  against  the  said  Thomas  Romaine,  as  builder, 
and  the  said  John  Carpenter,  as  owner,  for  an  indebtedness 
of  dollars,  etc.,  due  to  your  petitioner  from  the  said 

Thomas  Romaine,  for  wages  for  work  and  labor  done  and 
performed,  in  the  erecting  and  constructing  the  said  build- 
ing, by  your  petitioner,  as  a  journeyman  and  laborer,  and 
that  thereafter,  to  wit,  on  the  day  of,  etc.,  your  pe- 

titioner, in  a  suit  duly  instituted  to  enforce  his  said  lien 
claim,  in  said  court,  recovered  judgment  for  the  sum  of 
dollars,  etc.,  specially  to  be  made  of  the  said  lands 
and  building,  as  by  the  record  thereof  appears,  which  said 
lien  claim  and  judgment  of  your  petitioner  are  still  respec- 
tively undischarged  and  unsatisfied : 

That  one  Jacob  Fisher,   on  the  day  of,   etc.,   filed 

his  lien  claim  against  the  said  land  and  building,  and 
against  the  said  Thomas  Romaine,  as  builder,  and  the  said 
John  Carpenter,  as  ownei',  for  an  indebtedness  of 
dollars,  etc.,  or  some  other  sum  alleged  to  be  due  to  the 
said  Jacob  Fisher,  and  that  thereafter,  and  within  the  time 
required  by  law,  *  suit  was  duly  begun,  said  court,  to  en- 
force said  claim  which  suit  is  still  pending  and  undeter- 
mined : 

That  one  Philip  Rich,  on  the  day  of,  etc.,  filed  his 

lien  claim,  etc,  (a?  in  the  last  paragraph  to  the  *  and  then 
proceed)  a  summons  was  issued,  in  a  suit  to  enforce  said 
lien  claim,  but  the  time  of  the  issuance  of  such  summons 
was  not  endorsed  upon  the  said  lien  claim,  within  the  time 
required  by  law,  and  that  the  said  lien  claim  of  the  said 
Phillip  Rich  thereby  became  and  was  discharged: 

(In  the  same  manner,  set  out  all  other  lien  claims,  and 
then  proceed.) 

That  the  said  lien  claim  of  your  petitioner  is  entitled  to 
preference  over  all  the  other  lien  claims  above  mentioned, 
and  that  your  petitioner  is  entitled  to  be  first  paid  therefor 
out  of  the  said  proceeds  of  sale  (see  §  6  ante)  : 

That  the  said  George  L.  Mott,  as  mortgagee,  claims  some 
lien  upon  the  said  proceeds  of  sale  by  virtue  of  a  mortgage 
upon  said  lands  and  premises  above  mentioned  and  de- 
scribed, given  to  him  by  on  the  day  of,  etc., 
to  secure  dollars,  etc.,  or  some  other  sum ;  but  your 
petitioner  shows  that  any  right,  claim,  or  interest  of  the 
said  George  L.  Mott,  in  the  said  proceeds,  if  any  he  has,  is 


206  Mechanics  Lien  Law. 

subsequent  and  subject  to  the  claims  of  jour  petitioner  and 
of  the  said  Samuel  Andreus,  but  is  prior  to  the  claim  of 
all  the  other  lien  claimants  above  mentioned." 

Your  petitioner  further  shows  that  the  lien  claims  above 
mentioned  are  the  only  claims  which  have  been  filed  against 
the  said  land  and  building:  and 

Your  petitioner,  therefore  prays  that  the  said  proceeds 
of  sale  may  be  distributed,  by  the  order  of  this  court,  among 
said  claims  according  to  law  and  the  rights  of  said  several 
claimants,  as  above  mentioned.^ 

X.  Y.  Z.,  Attorney. 

State  of  New  Jersey,  1 
County  of  Bergen,     /^*•• 

William  Stiles,  the 

above  named  petitioner,  being  duly  swoni  on  his  oath  ac- 
cording to  law  deposes  and  says  he  has  read  the  foregoing 
petition  and  that  all  the  matters  and  the  things  therein  al- 
leged and  set  forth  are  true,  as  he  is  credibly  informed  and 
believes. 

(Jurat.)  (Signature.) 

1.  Entitle  the  petition  in  the  cause  wherein  the  execution  was 
issued,  under  which  sale  was  made. 

2  If  the  sheriff  refuses  to  pay  the  money  into  court  he  should 
be  ruled  to  do  so.  See  §  29,  note  2.  To  obtain  such  a  rule, 
neither  pleading  or  proof  is  necessary.  G-ifford  v.  McOuiness, 
53  Atl,  87. 

3.  Mortgagees  and  other  encumbrancers,  whose  liens  are  prior 
to  the  lien  claims  are  not  interested  parties,  as  the  sale  of  the 
property  cannot  cut  off  their  liens.  The  owner,  and  subsequent 
mortgagees,  whose  liens  are  cut  off  by  the  sale,  are  interested  in 
the  surplus  proceeds,  if  there  are  any;  and  are  entitled,  under  the 
statute,  to  litigate  the  validity,  or  the  correctness  of  the  various 
lien  claims,  which  have  not  been  established  by  special  judg-ment; 
it  would  seem,  therefore,  that  they  are  entitled  to  notice  of  this 
proceeding ;  and  such  would  certainly  be  true  m  the  case  ol  a 
mortgagee  whose  encumbrance  is  subsequent  to  one  hen  claim 
but  prior  to  another;  as  may  be  the  fact  if  the  mortgage  is  an 
advance  money  mortgage.  For  in  such  a  case  the  mortgagee  lias 
an  interest  in  regard  to  the  way  the  proceeds  are  to  be  distributee! 
among  the  lien  claims,  even  although  he  admits  them  all  to  be 
valid  and  correct.  When  such  a  case  arises,  the  court  may  be 
able  to  work  out  the  problem  of  disposition  whiob  will  be  pre- 
sented, for  example, — 


FoKMs.  207 

The   proceeds   of   sale   are $1,500 

The  lien  claim  A  is  for 500 

The  lien  claim  B  is  for 500 

The  mortgage  is  for 1,000 

and  is  prior  to  lien  claim  B  and  subject  to  lien  claim  A.  How 
are  the  moneys  to  be  distributed.  See  Hoag  v.  Sayre,  6  Stew.  552; 
Day  V.  Munson,  14  Ohio  St.  488;  Clement  v.  Kaighn,  2  McCart. 
47.  In  Hoag  v.  Sayre,  Justice  Dixon's  dissenting  view  is  the 
same  as  the  view  adopted  in  the  Ohio  case,  although  he  does  not 
cite  it.     It  is  said,  in  Law  Notes,  to  be  the  better  view. 

Subsequent  judgment,  or  other  than  mortgage,  encumbrancers 
are  clearly  not  entitled  to  notice,  as  the  statute  gives  them  no  right 
to  be  heard  upon  the  question  of  the  validity,  or  correctness,  of  the 
lien  claims;  but  they  may,  perhaps,  apply  to  be  admitted  on  the 
ground  that  the  proceeds  of  sale  will  more  than  satisfy  the  other 
claims,  and  that  they  are  entitled  to  share  in  the  surplus. 

4.  It  would  seem  to  be  good  practice,  upon  presenting  this 
petition  to  the  judge,  and  having  it  marked  as  filed,  to  take  a  rule 
to  show  cause.  Such  a  rule  could  contain  a  direction  to  take 
proofs,  and,  upon  its  return  with  such  proofs  and  with  due  proof 
of  its  service  upon  the  parties  interested,  an  order  could  be  made. 
If  such  a  rule  were  made  returnable  on  a  day  when  the  judge 
was  actually  attending  at  the  circuit,  with  a  stenographer  present, 
there  would  seem  to  be  no  good  reason  why  the  proofs  should  not 
be  heard  by  him  orally  at  that  time.  Such  a  practice  would,  for 
many  reasons,  be  advantageous. 

27. — Rule  to  show  cause  on  petition.    §  29. 

Bergen  County  Circuit  Court. 

Samuel  Andreus,  Claimant,    "] 

I 
Thomas  Eomaine,  Builder,      )■  On  C<Dntract  on  Lien  Claim. 

John  Carpenter,  Owner,  | 

George  L.  Mott,  Mortgagee,   j 

On  reading  and  filing  the  petition  of  William  Stiles, 
praying  for  the  distribution  of  the  proceeds  of  the  sale  on 
the  execution  issued  on  the  judgment  heretofoi*e  entered  in 
this  court  in  the  above  entitled  cause,  it  is  hereby  ordered 
that  Thomas  Riomaine,  builder,  John  Carj>enter,  owner, 
George  L.  Mott,  etc.,  (naming  all  the  various  claimants), 
and  each  of  them,  show  cause  before  said  court  on 
the  day  of,   etc.,  at  the  court  house  in  Hackensack, 

at  ten  o'clock  in  the  forenoon,  why  an  order  should  not  be 
made  pursuant  to  the  prayer  of  said  petition: 


208  Mechanics  Lieis'  Law. 

And  it  is  fiirtlier  ordered  that  the  said  parties,  or  either 

of  them,  may  take  proofs  on  days  notice,^   and  that 

a  copy  of  this  rule  be  served  upon  each  of  the  parties  and 

persons   above   mentioned,  by   the  said   petitioner,   at   least 

days  before  the  return  day  hereof. 

Let  the  above  rule  be  entered. 

J.  D.,  Judge. 

On  motion  of 

C.  L.  &  K.,  Attorneys  of  Petr. 

Rule  entered  this  day  of,  etc. 

1.  In  lieu  of  this  direction  to  take  proofs,  the  judge  might 
direct  that  the  parties  produce  their  proofs  orally  before  him  on 
the  return  day. 

28.— Order  of  distributton.     §  29. 

(Title  as  in  last  two  forms.) 

This  matter  coming  on,  on  rule  to  show  cause  heretofore 
allowed  upon  the  petition  of  William  Stiles,  and  it  being 
made  to  appear  that  the  proceeds  of  the  sale  of  the  land  and 
buildings,  sold  by  virtue  of  the  special  writ  of  fieri  facias 
issued  in  the  above  stated  cause,  after  deducting  the  sheriff's 
fees,   amounts   to  the  sum   of  dollars,   etc.,    and   tliat 

said  sum  has  been  paid  into  court  by  the  sheriff;  and  that 
the  rights  of  the  several  persons  entitled  thereto  are  as  fol- 
lows, viz. : 

The  said  William  Stiles,  for  his  said  judgment,  is  firs't 
entitled  to  be  paid  the  sum  of  dollars,  etc.,  in  full; 

The   said    Samuel   Andreus,    for   his   said    judgment,    of 
dollars,   etc. ;   the  said   Jacob   Fisher,   for  his   claim 
of  dollars,  etc. ; 

(and  so  as  to  the  others  in  like  case) 
are  entitled  to  share  the  residue  of  said  proceeds,  pro  rata, 
between  them;  and  no  cause  being  shown  or  appearing 
to  the  contrary;  it  is  ordered  that  the  clerk  of  this  court 
do  first  pay  the  said  William  Stiles  (petitioner,  his  costs 
of  the  proceedings,  to  be  taxed;  that  he  next  pay  the 
said  William  Stiles  the  said  sum  of  dollars,  etc.,  due 

him  on  his  judgment ;  and  that  he  next  distribute  and  pay 
the  remainder  of  said  proceeds  pro  rata  among  the  said 
(naming  the  other  claimants)  according  to  the  amount  of 
their  several  judgments   or  claims  as   aforesaid;    provided 


Forms.  209 

that  he  shall  in  no  case  pay  to  any  of  said  claimants  his  said 
share  of  said  proceeds  until  after  his  lien  claim  shall  have 
been  filed  for  three  months. 

Rule  entered  this  day  of,  etc.,  A.  D.  1902. 

On  motion  of 

Attorney. 
Let  the  alwve  rule  be  entered  in  the  minutes. 

J.  D.,  Judge. 

29. — Form  of  receipt  to  discharge  lien  claim.    ^  31. 

Bergen  County  Clerk's  Office. 

Samuel    Andreus,    Claimant,  \ 

V.  (       .  . 

Thomas  Romaine,  Builder,  [  ^^^^"  ^^^^"'• 

John  Carpenter,  Owner.  J 

I  hereby  acknowledge  that  I  have  received  the   sum   of 
dollars,   etc.,   in  full  payment  and  discharge  of  the 
alx)ve  entitled  lien  claim  bv  me  heretofore  filed. 
Dated,  etc. 

SAMFEL  AXDREUS  (Seal). 

I  hereby  certify  that  the  foregoing  receipt  and  discharge 
was  executed,  on  the  day  it  bears  date,  in  my  presence  by  the 
said  Samuel  Andreus,  to  whom  I  first  made  kno\vTi  the  con- 
tents thereof,  and  who  thereupon  acknowledged  that  he 
signed  and  sealed  the  same  as  his  voluntary  act  and  deed. 

In  witness  whereof,  I  have  hereto  set  my  hand  the  day 
and  year  aforesaid. 

A.  B.,  Master  in  Chancery  of  N.  J. 

30. — Affidavit  to  discharge  lien  claim.    ^  31. 

Bergen    C'ounty   Clerk's    Office. 

(Copy,  title  and  notice  which  have  been  served,  see  Form 
14,  and  add) 

State  of  New  Jersey,     \.  ^  ^  . 
County  of  Bergen,      j 

being  duly 
sworn  on  his  oath  according  to  law  says  that  on  the  day  of, 
14 


210  Mechanics  Lien  Law. 

etc.,  he  served  a  notice  signed  by  John  Cai*penter,  the  above 
named  owner,  and  of  which  the  foregoing  is  a  true  copy,  on 
the  said  Thomas  Romaine,  the  above  named  claimant,  by 
giving  the  said  notice  to  the  said  Thomas  Romaine,  person- 
ally in  hand ;  and  that,  as  appears  upon  the  record,  more 
than  thirty  days,  since  said  service,  have  elapsed  without 
such  suit  being  commenced,  or  mthout  any  entry  of  the  timo 
of  issuing  such  summons  being  made  upon  such  lien  claim. 
(Jurat.)  (Signature.) 


TABLE  OF  CASES  CITED. 

(211) 


TABLE  OF  CASES  CITED. 


PAGE. 

Adams  v.  Wjells,  19  Dick.  211;    53  Atl.  610 60,  62,  68,  75 

American  Brick  Co.  v.  Drinkhouse,  29  Vr.  432.. 95,  97,  106,  107,  109 
American  Brick  Co.  v.  Drinkliouse,  30  Vr.  462, 

77,  80,  81,  82,  83,  90,  107,  108,  109 

Anderson  v.  Huff,  4  Dick.  349 60,  63,  64,  67,  69 

Anderson  Lumber  Co.  v.  Friedlander,  25  Vr.   375 26 

Arnett  v.  Finney.     See  Case  v.  Arnett. 

Arzonico  v.  West  New  York,  46  Vr.  21;    69  Atl.  450, 

58,  151,  153,  154 
Associates  v.  Davisou,  5  Dutch.  415,  424.  .31,  32,  37,  78,  96,  97 

Atkinson  Co.  v.  Shields  Co..  72  Atl.  81. 36,  78,  127 

Atlantic,  etc.,  Co.  v.  Donnelly.     See  Brewing  Go.  v.  Dormelly. 
Ayres  v.  B«vere,  I  Dutch.  474 31,  40,  45,  118,  129,  130 

Babbitt  v.  Condon,  3  Dutch.  154 36,  45,  77,  122,  127 

Bank    V.   Bayonne,   3   Dick.    246 44 

Barnaby  v.  Bradley  &  Currier   Co.,  31   Vr.   158 146 

Barnett  v.   Griffith,  12   C.  E.  Or.  201 138 

Bartley  v.  Smith,  14  Vr.  321 96,  107,  108,  129 

Bates  Co.  v.  Trenton  Co.,  41  Vr.  684 33,  34,  80,  96,  175 

Bayonne   Assn.   v.    Williams,    12    Dick.   503;    42   Atl.    171, 

54,  68,  71 
Bayonne  Assn.  v.  Williams,  14  Dick.  617;    43  Atl.  669.  ...68,  72 

Beckhard  v.  Eudolph,  2  Rob.  315 32,  54,  59,  62,  63,  68 

Beckhard  v.  Rudolph,  2  Rob.  740 33,  54,  55,  59,  63,  68 

Bell  V.  Flemings'  Ex'rs,  1  Beas.  13 ;    id.  490 88 

BeU  V.  Mecum,  46  Vr.  547;   68  Atl.  149 34,  95,  124,  127 

Bement  v.  Trenton,  etc.,  Co.,  2  Vr.  246;    3  Vr.  513 97,  101 

Berger,  etc..  Co.  v.  Zabriskie,  75  N.  Y.  Supp.  1038 86 

Bernz  v.  Marcus  Sayre  Co.,  7  Dick.  275.  .41,  42,  43,  64,  173,  174 
Binns  v.  Slingerland,  10  Dick.  55 ;  11  id.  413, 

71,  72,  73,  74,  89,  175 

Blauvelt  V.  Fuller,  37  Vr.   46;    48   Atl.   538 41,   65,  73 

Board  of  Ed.  v.  Duparquet,  5  Dick.  234 43,  44,  64,  68,  71 

Booth  V.  Kiefer,  15  Dick.  57;    47  Atl.  12 41.  42,  65 

Bowlbv  V.  Willison,  11  N.  J.  L.  J.  42 60,  63,  68 

Bozarth  v.  Dudley,  15  Vr.  304 41,  42 

Bradley   v.    Byran,   16    Stew.   396 136 

Bradlev,  etc.,  Co.  v.  Berns,  6  Dick.  437 41,  42,  43 

Bradner  v.  Roffsell,  28  Vr.  412 173 

Brearley  v.   Cox,  4  Zabr.  289 <^0 

Brennan  v.  Industrial  Assn.,  17  N.  J.  L.  J.  204 54 

(213) 


214  Mechaiv'ics  Lien  Law. 

PAGE. 

Brewing  Co.  v.  Clement.    See  Brewing  Co.  v.  Donnelly. 

Brewing  Co.  v.  Donnelly,  30  Vr.  48;    id.  439 34,  77 

Brown  v.  Daws,  3  Zabr.  483 122 

Bruce  V.  Pearsall,  30  Vr.  62 26,  54 

Buckley  v.  Hann,  39  Vr.  624 42 

Budd  V.  Lucky.  4  Dutch.  484 45,  48 

Budd   V.    Trustees,   22    Vr.    36 64 

Burd  V.  Huff,  17  N.  J.  L.  J.  80 35,  83,  84,  97,  133 

Burnett  v.  Jersey  City,  4  Stew.  341 43,  44,  64,  68,  71,  176 

Byrne  v.  Sisters,  etc.,  16  Vr.  213 41,  173 

Camden  Wks.  v.  Camden,  15  Dick.  211;    47  Atl.  220, 

57,  61,  151,  153,   154,   156 

Camden  Wk>.  v.  Camden.  19  Dick.  723;    52,  Atl.  477, 

61,  151,  153,  156 
Campbell  v.  Taylor  Mfg.  Co..  17  Dick.  307;  49  Atl.  1119.  .80,  81 
Campbell  v.  Tavlor  Mfg.  Co.,  19  Dick.  344;    51  Atl.  723, 

34,  80,  81,  122 

Campbell  Murrell  Co.  v.  Leliocky,  73  Atl.  515 45,  46 

Carlisle  v.  Knapp,  22  Vr.  329 25,  53,  54,  55,  57 

Case  V.  Arnett,  11  C.  E.   Gr.  459:    2   Stew.  309 80 

Central  R.  E.  Co.  v.  State  Bd.,  46  Vr.  120;    id.  771;   67  Atl. 

672    21 

(Central  Trust  Co.  v.  Bartlett.  28  Vr.  206 118 

Central  Trust  Co.  v.  Continental,  etc.,  Co.,  6  Dick.  605 88 

Chism  V.   Schipper,   22  Vr.   1 41,   173 

Cliosen   Freeholders   v.   Lindsley.    14   Stew.   189,    195.  .64,   68,   71 

Clark  V.  Butler,  5  Stew.  664 36,  126,  136,  138 

Clement  v.  Xaiahn,  2  McCart.  47 207 

Coddington  v.  Beebe,  5  Diitch.  550 L' •  •   HE 

Coddington  V.   Beebe.  2  Vr.  477.  .34,   36,   81,  118,  123,  124,  127 

Cogan  V.   Conover  Co..  3  Eob.   809 44 

Coles  V.  First  Bapt.  Ch.,  30  Vr.  311 •  •  117 

Combs  V.  Lippincott,  6  Vr.  481 33,  83 

Congdon  v.  Cook.  55  Minn.  1 •■■■•■  ••••     86 

Corcoran  v.  Jones,  12  N.  J.  L.  J.  38 36,  78,  96,  118,  119 

Cornell  v.   Matthews.   3  Dutch.   522.  .96,  118,   122,  124,   127.  128 

Cox  V.  Flanagan,  2  Atl.  33 97.  101,  119,  124 

Cox   V.   Marlatt,   7   Vr.   389 i: '  VoW   HI 

Craig  V.  Smith,  8  Vr.  549 63,  65,  71,  122,  123 

Crane  Co.  v.  Belfatto,  47  Vr.  451;    69  Atl.  1085 66 

Crouse  v.  Lewis,  30  Vr.  288 142 

Cueman    v.    Barnes,   11    N.   J.    L.    J.    172 13^ 

Culver  V.  Liebei-man,  40  Vr.  341 112,  118,  119,  122 

Currier  v.  Cummings,  13  Stew.  145 37,  78,  80,  119,  139 

Cutter  V.  mine,  8  Stew.  534;    7  Stew.  329 125,  126,  129 

Dalrvmple  v.  Eamsey,  18  Stew.  494 •  •  •  -32,  36 

Daly  V.  Somers  Co.,  4  Eob.  343;   1  Buch.  307 68,  77,  174 

Day  V.  Munson,  14  Ohio  St.  488 207 


Table  of  Cases  Cited.  215 

PAGE. 

Delafield  v.  Sayre,  31  Vr.  449 57,  149,  151,  154,  160,  162,  164 

DeMott  V.   Stockton,  etc.,  Co.,  5  Stew.   124 102,  105 

Derrickson  v.  Edwards,  5  Dutch.  468 94,  106,  110 

Dey  V.  Anderson,  10  Vr.  201 35 

Dey  V.  Davis,  18  N.  J.  L.  J.  301 78 

Dimmick  v.  Metr.  Ins.  Co.,  38  Vr.  367 122,  195 

Dodge  et  al.  v.  Romain,  15  Atl.  114 86 

Donnellv  v.  Johnes,  13  Dick.  442;   44  Atl.  180, 

44,  60,  63,  68,  72,  75 
Doty  V.  Auditorium  Co..  20  Dick.  768 ;  aff.  s.  c.  56  Atl.  720, 

98,  105,  106,  107 

Downington,  etc.,  v.  Franklin  Mills,  34  Vr.   32... 95 

Drinkhouse  v.   Am,  Brick  Co.     See  American  Brick   Co.  v. 
Drinlchouse. 

Dunn  V.  Stokern,  16  Stew.  401 42,  60,  68,  174 

Dyer  v.  Lintz,  68  Atl.  908 42 

Earle  v.  Willetts,  27  Vr.  334;    24  Vr.  270 38,  66,  78 

Edge  V.   McClay,   64  Atl.   969;    2   Buch.   216 68,   73,   75 

Edwards  v.  Derrickson.  4  Dutch.  39;    5  id.  468, 

34,  35,  80,  94,  96,  97,  109,  118,  129 

Egbert  r.   DeCamp,   3  N.   J.   L.   J.   284 138 

English  V.  Warren,  20  Dick.  30 45,  46,  56,  68 

Ennis  V.  Eden  Co.,  36  Vr.  577:    48  Atl.  610, 

102,  105,  118,  119,  120,  122,  202 

Erdman  v.  Moore,  29  Vr.  445 33,  77,  79,  80,  92,  96,  118,  139 

Evans  v.  Lower,  1  Bob.  232.  .45,  54,  59,  60,  61,  62,  63,  64,  68,  175 

Faith   v.   McXair,   13   N.   J.   L.  J.   44 95,   123 

Federal  Trust  Co.   v.  Guigues,  74  Atl.  652, 

95,  110,  140,  173,  174,  175 

Feeney    v.    Bardsley.    37    Vr.    239 42 

Fehling  V.  Goings,  1  Rob.  375 54,  59,  62,  63,  64,  68 

Fell  V.  McManus,  1  Atl.  747 44,  64,  176 

Five  Mile  Beach  Co.  v.  Friday.  66  Atl.  901 125 

Flaherty  v.  Atlantic  Lumber  Co.,  13  Dick.  467;    44  Atl.  186, 

44,  60,  63,  68,  72 

Foster   v.   Rudderow,   3    Atl.   694 62,   68 

France  v.  Netherwood.  2  N.  J.  L.  J.  90 35 

Frank  v.  Freeholders,  10  Vr.  347 36,  55,  57 

Freedman  v.  Sandknop,  8  Dick.  243 45,  68 

Fry   V.    Patterson,    20    Vr.    612 60 

Gardner  &  Meeks  Co.  v.  Herold,  72  Atl.  27;    74  Atl.  568, 

39,  58,  62,  66,  86 
Gardner  &  Meeks  Co.  v.  N.  Y.  Centr.  Co.,  43  Vr.  257.  .31,  34,  54 

Garretson  v.  Clark,  57  Atl.  414 151,  159 

Garrison  v.  Borio.  16  Dick.  236;   47  Atl.  1060, 

57.  61,  151,  153,  154,  156,  162 
Gay  v.  Hervey,  12  Vr.  39 78 


216  Meohaxics  Lien  Law. 

PAGE. 

Gay  V.  Smith,  1  N,  J.  L.  J.  51 ;    12  Vr.  39 79 

Gerard  v.  Birch,  1  Stew.  317 95,  109,  110,  125 

Gibbs  V.  Grant,  2  Stew.  420 78,  136,  137 

Gifford  V.  McGuinness,  18  Dick.  834;    53  Atl.  87 141,  206 

Gordon  v.  Torrey,  2  McCart.  112.  .95,  96,  97,  118,  126,  129,  133 

Griffin  V.  N.  J.,  etc.,  Co.,  3   Stock.  49 88 

Griggs  V.  Stone,  22  Vr.  549 31,  80,  81 

Hagan    v.    Gaskill,    15    Stew.    215 78,    84 

Hall  V.   Acken.   18  Vr.   340 36,  79 

Hall  V.  Baldwin,  18  Stew.  858 60,  63,  68,  71 

Hall  V.  Jersey  City,  17  Dick.  489;    50  Atl.  603, 

35.  58,  61,  151,  153,  154,  155,  156,  157,  160.  164 
Hall  V.  Jersey  City,  19  Dick.  768;   53  Atl.  481, 

61,  151,  153,  155,  156,  157.  160,  164 

Hall  V.   Spaulding,  11   Vr.  166 101,  125,   142 

Hazard  v.  Bd.  of  Ed.,  75  Atl.  237.  .151,  1.53,  155,  156,  157,  158 

Heidelbach  v.  Jacobi,  1  Stew.  544 134 

Heinselt  v.  Smith,  5  Vr.  215 140 

Heintze  v.   Bentley,   7   Stew.   562 88 

Herman,  etc.,  Co.  v.  Essex  Co.,  1   Buch.  541;    64  Atl.  742, 

151,  153 
Herman,  etc.,  Co.  v.  Essex  Co.,   3  Bnch.  415,  416,  417;    75 

Atl.  1101,  etc 151,  153 

Herman,  etc.,  Co.  v.  Sayward.    See  Herman,  etc.,  Co.  v.  Essex 

Co. 
Hervey  v.  Gay,  13  Vr.  168;    12  Vr.  39;    1  N.  J.  L.  J.  51.  .78,  82 

Hill  V.  Carlisle,  14  N.  J.  L.  J.  114 45 

Hoag  V.   Sayre,   6   Stew.   552 207 

Howell  Lumber  Co.  v.  New  Brunswick,  75  Atl.  750 165 

Huber  V.  Diebold,  10  C.  E.  Gr.  170 136 

Hughes  V.  Lambertville,  etc.,  Co.,  8  Dick.  435 80 

In  re  Margarum,  26  Vr.  12 108 

Isetts  V.  Bliwise,  43  Vr.  102 42 

Jacobus  V.  Mut.,  etc.,  Co.,  12  C.  E.  Gr..  604;   11  C.  E.  Gr.  389, 

88,  91,  96,  125.  1.33,  139 
James  v.  Van  Horn.  10  Vr.  353, 

97,  101.  106,  107,  109,  110,  112,  119,  120,  122,  126,  127,  133 

Johnson  v.  Algor,  36  Vr.  363 ;   47  Atl.  571 112 

Johnson  v.  Parker,   3  Dutch.  239 36,  86 

Kaighn  v.   Friday,  73   Atl.  540 125 

Kelaher  v.   English.  17   Dick.   675;    50  Atl.   902, 

58,   151,   154.    160 

Kennedy  v.   Parke,  2   C.   E.  Gr.  415 44 

King  V.  Berry,  2  Gr.   Ch.  44 44 

Kirtland  v.  Moore,  13  Stew.  106 41,  43,  53,  60,  63,  68,  71,  173 

Kittredge  v.  Neumann,  11  C.  E.  Gr.  195 86,  138 


Table  of  Cases  Cited.  217 

PAGE. 

Kline  v.  Cutter.    See  Cutter  v.  Kline. 

Kline  v.  McGuckin,  9  C.  E.  Gr.  411 88 

Kreutz  v.  Cramer,  19  Dick.  648 68,  73 

LaFoucherie  v.  Knutzen,  29  Vr.  234 45,  47,  48 

Lamb  v.  Cannon,  9  Vr.  362 136,  138 

Lanahan  v.  Lawton,  5  Dick.  276 88 

Lanigan  v.  Bradleyi  etc.,  Co.,  o  Dick.  201 43,  64,  71 

Learj'  v.   Lamont,   42   Atl.   97 68,   71 

Leaver    v.    Kilmer,    54    Atl.    817 127 

Leaver  v.  Kilmer,  59  Atl.  643 36 

Leonard   v.    Cook,   20   Atl.    855 78 

Loh  V.  B'way  Co.,  71  Atl.   112 42 

Macintosh  v.  Thurston,  10  C.  E.  Gr.  242.  .36,  78,  88,  118,  136,  137 

Mackinson  v.  Conlon,  26  Vr.  564 173 

McNab,  etc..  Co.  v.  Paterson  Bldg.  Co.,  1  Buch.  133, 

3,   32,   52,    54,   55,   56,   57,   59,    62,    63,   68 
McNab,  etc.,  Co.  v.  Paterson  Bldg   Co.,  2  Buch.  929, 

32,  33,  52,  55,  59,  62,  68 
McPherson  v.  Walton.  15  Stew.  282 43,  44,  60 

Magowan  v.   Stevenson,  29  Vr.  31 26 

Manhattan  Assn.  v.  Massarelli,  42  Atl.   284 144 

Manhattan  Co.  v.  Paulison,  1  Stew.  304 35,  133 

Marcus  Sayre  Co.  v.  Moore,  19  N.  J.  L.  J.  110 108 

Margarum.     See  in  re  Margarum. 

Matthews  v.  Wjarne,  6  Halst.  295 141 

Mayer  v.  Mutchler,  21  Vr.  162 64,  65,  71 

Mechanics  Co.  v.  Albertson,  8  C.  E.  Gr.  318 42,  47,  139 

Meurer  v.  Kilgus,  75  Atl.  899 154 

Meyer  v.  Berlandi,  39  Minn.  438;    12  Am.  St.  Rep.  663 86 

Miller  v.   Stockton,  35  Vr.  614 44 

Monmouth  Park  Assn.  v.  Wallis  Wks.,  26  Vr.  132 176 

Mooney  v.  Peck,  20  Vr.  232 123 

Morris  Co.  Bnk.  v.  Eockaway  Mfg.  Co.,  1  McCart.  189.  .34,  95,  122 
Morris  Co.  Bnk.  v.  Rockaway  Mfg.  Co.,  1  C.  E.  Gr.  150.  .112,  126 

Murphy   v.   Borden,   20  Vr.   527 143 

Murphy,  etc.,  Co.  v.  Nicholas,  37  Vr.  414;    49  Atl.  447, 

34,  38,  45,   57 

MuiThy  V.  Hussa,  40  Vr.  381 82,  90 

Mutual  Benefit   Co.  v.  Rowland.   11   C.   E.   Gr.   389, 

34,  119,  125,  127,  128,  133 
Mutual,  etc.,   Co.  v.  Walling.  6  Dick.   99 89,  90 

National  Bank  v.  Sprague.  5  C.  E.  Gr.  13 36,  78,  136 

National   Fire  Proofing   Co.  v.  Daly,  74  Atl.   152, 

151,  153,  156,  157,  158,  160 

Naylor  v.  Smith,  34  Vr.  596;    35  id.  358 124 

Neil  V.  Watson,  15  N.  J.  L.  J.  138 38,  45,  m 


218  Mechanics  Lien  Law. 

PAGE. 

Newark  Lime  Co.  v.  Morrison,  2  Beas.  133 134 

New  Jersey,  etc.,  Co.  v.  Bachelor,  9  Dick.  600 89,  136,  137 

New  York,  etc.,  Co.  v.  Kiernan,  44  Vr.  763 123,  128 

Norton  v.  Sinkhorn,  16  Dick.  508;    48  Atl.   822, 

57,  151,  153,  154,  162 
Norton  v.  Sinkhorn,  18  Dick.  313;    50  Atl.  506, 

59,  151,  153,  154,  161,  162 

Ottawa  Tribe  v.  Munter,  31  Vr.  459 124 

Pennoyer  v.  Neff,  95  U.  S.  714 119,  190 

Perrine  v.  Parker,  5  Vr.  352 80 

Person  v.  Herring,  34  Vr.  599 ;    44  Atl.  753 72 

Pierson  v.  Haddonfield,  21  Dick.   180;    57  Atl.  471, 

151,  155,  159,  162 

Pimlott  V.  HaU,  26  Vr.  192 45 

Piatt  V.  Griffith,  12  C  E.   Gr.  207 88 

Porch  V.  Agnew  Co.,  4  Eob.  328 33,  88,  92,  139 

Porch  V.  Fries,  3  C.  E.  Gr.  204 58 

1 

Quick  V.  Corlies,  10  Vr.  11 35 

Quinby  v.  Manhattan,  etc.,  Co.,  9  C.  E.  Gr.  261 80 

Randolph  v.  Builders,  etc.,  Co.,  106  Ala.  501 86 

Raymond  v.  Post,  10  C.  E.  Gr.  447 95,  123,  125,  144 

Reed  v.  Rochford,  17  Dick.  186;    50  Atl.  70 84,  88,  91 

Reeve  v.  Elmendorf,  9  Vr.  125 60,  64,  65,  66,  67 

Robins  V.  Bunn,  5  Vr.  322 96,  118,  129,  130 

Robinson  v.  Urquhart,   1  Beas.  515 88 

Rogers  v.  Brokaw,  10  C.  E.  Gr.  496 80 

Roselle  Park  v.  Montgomery,  60  Atl.  954 151,  158,  160,  161 

St.  Peters  Church  v.  Van   Note,  21  Dick.  78, 

45,  64,  68,  162,  174 

Schmidt  V.  Eitel,  4  Rob.  8 68 

Scott  V.  Reeve,  10  N.  J.  L.  J.  12 37 

Scudder  v.  Harden,  4  Stew.  503 31,  47,  126 

Sewall  V.  Hawkins,  17  Vr.  161.   6 69,  106,  107 

Shallcross  v.  Deats,  14  Vr.  177 141 

Shannon  v.  Hoboken,  10  Stew.  123 43,  63,  71 

Sherer  v.  Collins,  2  Harr.  181 28 

Sheyer  v.  Pinkerton  Co.,  59  Atl.  462 173,  174,  175 

Sinnickson  v.  Lynch,  1  Dutch.  317 28 

Slingerland  v.  Binns,  11  Dick.  413 71,  72,  73,  74,  89,  175 

Slingerland  v.  Lindsley,  1  N.  J.  L.  J.  115 35,  96,  118 

Smith   V.    Colloty,    40    Vr.    365 119,    127,    190 

Smith  et  al.  v.  Dodge  &  Bliss  Co.,  14  Dick.  584;   44  Atl.  639, 

41,  44,  68,  72,  76 

Snyder  v.  New  York  Co..  43  Vr.  262 34 

Somers  Co.  v.  Souders,  4  Rob.  388 ;    61  Atl.  840, 

151,    155,    158,    159,    160,    161,    163 


Table  of  Cases  Cited.  219 

PAGE. 

Somers  Co.  v.  Souders,  1  Buch.  759;   70  Atl.  158, 

151,  155,  158,  159,  160,  161,  163 
South  End  Imp.  Co.  v.  Harden,  52  Atl.  1127, 

35,  42,  44,  54,  59,  60,  62,  68,  77,  174 

State  V.  Salem  Pleas,  5  Halst.  319 141 

Stebbins  v.  Walker,  2  Gr.  90 140,  141 

Steelman  v.  Ludy,  72  Atl.  423 173 

Sterling  v.  Van  Cleve,  7  Halst.  285 141 

Stevenson  v.  Meeker,  18  N.  J.  L.  J.  51 35 

Stewart  Co.  v.  Trenton  Co.,  42  Vr.  568, 

36,  96,  122,  124,  133,  175,  195 

Stiles  V.   Galbreath,  3  Eob.  222;    aff.  1   Buch.  299 92,  140 

Strong  V.  Van  Deursen,  8  C.  E.  Gr.  369 78,  136 

Summerman  v.  Knowles,  4  Vr.  202 55,  57,  65,  66 

Supt.  V.  Heath,  2  McCart.  22 43,  44,  53,  58,  67,  71 

Taliaferro  v.  Stevenson,  29  Vr.  165 35 

Taylor  v.  LaBar.  10  C.  E.  Gr.  222 88 

Taylor  v.  Reed,  39  Vr.  178;    52  Atl.  579 65,  73,  75 

Taylor  v.  Wahl,  40  Vr.  471 60,  61,  65,  67,  69 

Taylor  v.  Wahl,  43  Vr.  10 60 

TerKnile  v.  Reddick,  39  Atl.  1062 68 

Thompson  v.  Pierson,  2  Penn.  1019 141 

Title  Co.  V.  Wrenn.  35  Greg.  62;   76  Am.  St.  Rep.  454 86 

Titus  V.  Gunn,  40  Vr.  410 117,  175 

Tompkins  v.  Horton.  10  0.  E.  Gr.  284 118,  126,  135 

Tomlinson  v.  DeGraw,  2  Dutch.  73 123,  124 

Trade  Ins.   Co.  v.   Barraeliff,  16  Vr.  543 58 

Trenton  Com'rs.  v.  EeU.  7  Dick.  689;    29  Atl.  816 151,  153 

Trenton,  et<'..  Co.  v.  WoodrufF,  1  Gr.  Ch.  118 88 

Turner  v.   MiUer,   61   Atl.   741 68 

Turner  v.  Wells,  35  Vr.  269;    45  Atl.  641 43,  175,  176 

Turner  v.  Wells,  38  Vr.  572;    52  Atl.  358 175 

Union  Stone  Co.  v.  Hudson  Co.,  1  Buch.  657;  65  Atl.  466, 

151,  153,  162,  163 

United  States  Co.  v.  Newark,  66  Atl.  904 151,  161,  162 

United  State  Co.  v.  Newark,  74  Atl.  192 44,  151,  160,  176 

Updike  V.  Skillman.  3  Dutch.  131 80,  83 

Van  Alstyne  v.  Franklin  Council,  40  Vr.  672 127 

Van  Buskirk  v.  Bd.  of  Ed.,  75  Atl.  909 173,  175,  176 

Van  Dyne  v.  Ness.  1  Halst.  Ch.  485 28,  110 

Van  Pelt  v.  Hartough,  2  Vr.  331 34,  37 

Veitch  V.  Clark.  1  Rob.  57 68,  77,  174 

Vreeland  v.  Boyle,  8  Vr.  346 97,  106,  118,  121,  128 

Vreeland  v.  Bramhall,  10  Vr.  1 106 

Vreeland  v.  Knickerbocker  Co.,  46  Vr.  551 ;  68  Atl.  215, 

95,  96,  97,  107,  117,  124,  125 


220  Mechanics  LiejST  Law. 


PAGE. 

Wallace  v.  Silsby,  13  Vr.  1 137 

Ward  V.  Cooke,  2  C.  E.  Gr.  93 88 

Ward  V.  Hague,  10  C.  E.  Gr.  397 138 

Wasliburn  v.  Burns,  5  Vr.  18 36,  79,  86,  96,  118,  124,  128 

Weaver  v.  Atlantic,  etc.,  Co.,  12  Dick.  547;    40  Atl.  858, 

43,  45,  47,  55,  56,  68,  72 

Weaver  v.  Demuth,  11  Vr.  238 36 

Welch  V.  Hubschmitt  Co.,  32  Vr.  57 173 

Wheaton  v.   Berg,  50  Minn.  525 86 

Wheeler  v.  Abnond,  17  Vr.  161 101,  102,  107 

Whitehead  v.  First  Meth.  Ch.,  2  McCart.  135 134 

Wliitenack  v.  Noe,  3  Stock.  321 80,  96,  134 

Wightman  v.  Brenner,  11  C.  E.  Gr.  489 63,  67,  70 

Willetts  V.  Earle,  24  Vr.  270;   27  Vr.  334 38,  41,  42,  66,  174 

Williams  v.  Bradford,  21  Atl.  331 54,  62,  68 

Williamson  v.   Johnson,  7   Halst.  86 141 

Williamson  v.  N.  J.,  etc.,  Co.,  1  Stew.  296 97 

Willison  V.  Salmon,  18  Stew.  357 71 

Wilson  V.  Dietrich,  59  Atl.  250 151,  153,  163 

Woodruff    V.    Chapin.    3    Zabr.    556 140,    141 

Young  V.    Haight,  40  Vr.  453 92 

Young  V.  Wilson,  3  N.  J.  L.  J.  209 38,  47,  77,  78,  79 


INDEX. 

(221) 


INDEX. 


ADDITION  TO  A  BUILDING—  page. 

declared  to  be  a  building  79 

definition  of  79 

lien  for,  legislative  origin   and  history  of 17,  79 

statutory  provisions   as  to 79 

ADVANCE  MONEY  MORTGAGES— 

priority  of,  decisions  as  to 88,  89,  91,  92 

discussion  as  to 88-92 

statutory  provisions  as  to 87,  91 

ADVANCE  PAYMENTS— 

ovpner's  liability  for   69 

ALTERATION  OF  A  BUILDING— 

definition  of 80,  82,  83 

includes  fixtures,  etc .  , 83 

lien  for,  legislative  origin  and  history  of 82 

priority  of   82 

statutory  provision  as  to 81 

ALTERATION   OF  FIXED   MACHINERY.     See  Altera- 
tion  of  a  building. 

AMENDMENTS— 

general  authority  to  allow 128,  129 

APPORTIONMENT  OF  THE  BUILDING  FUND— 

discussion  as  to 75,  76 

ARCPIITECT— 

Authority  of   173 

Duties  of  173 

Lien  of 34 

ARCHITECT'S  CERTIFICATE— 

in  case  of  his  discharge 174 

extra  work  173 

substantial  performance 174 

may  be  given  when 77 

production  of,  excused  when  173 

necessity  for  173 

peril  in  waiving 77,  174 

ASSIGNMENT  OF  BUILDING  CONTRACT— 

effect  of   44 

forfeiture  for , 43 

stipulation  against 43 

(223) 


224  Mechanics  Liejn'  Law. 

ASSIGNMENT  OF  THE  BUILDING  FUND—  page 

acceptance  of 43 

effect  of,  if  assignment  collateral 44 

at  law  43 

in  equity 43,  44 

effective  from  when  43,  44 

method  of  making 43 

notice  of,  effect  of 43 

stipulation  against 43,  176 

validity  of,  in  equity 43 

ATTACHMENT  CREDITOES— 

priorities  of.  as  to  alterations,  etc 83 

BILL  OF  PARTICULARS— 

contract  work,  how  to  be  stated  in 97 

date  of  last  item,  importance  of 97 

must  exhibit  amount  and  kind  of  labor 92 

amount  and  kind  of  materials 92 

balance  justly  due 92 

credits  92 

dates   92,  97 

prices    92 

should  not  blend,  items  for  alteration  and  repairs 97 

items  for  labor  and  material 96,  126 

BONA  FIDE  MORTGAGEES— 

priorities  of,  as  to  alterations  or   repairs 82,  83 

rights  of,  as  to  altering  curtilage 108 

who  are 84 

who  are  not 139 

BONA  FIDE  PURCHASERS— 

priorities  of,  as  to  alterations  or  repairs 82,  83 

rights  of,  as  to  altering  curtilage 108 

BUILDING.  See  Additions  to;  Alteration  of;  Construction 
of;  Erection  of;  Fixed  Gearing;  Fixed  Machinery;  Fix- 
tures for  Mamifacturing  Purposes;    Removal  of;    Repara- 


tion of. 


commencement   of    131,   133 

lienability  of.    See  Lien. 

BUILDING  CONTRACT.  See  Assignment  of  Buildirvg 
Contract;  Assignment  of  Building  Fund;  Filing  d\f  Build- 
ing Contract. 

Construction    of  clause — 

as    to    alterations 174 

against  assignment    1 '4 

as  to  completion  by  owner 174 

as  to  order  for  extra  work 175 

against  liens   1*5 

as  to  penalty  for  delay 176 

as  to  production  of  releases 175 

form  of 1^^ 


Index.  225 

BUILDING  CONTRACT— (Cont'd).  page. 

married  woman's  signature  to 38-41,  86 

owner's   signature   to 38-41 

performance  of,  rules  as  to 41,  42 

BUILDING  FUND.    See  Apportionment  of  the;  Assignment 
of  the. 

BUILDING  LIEN  LEGISLATION— 

constitutionality  of   31 

construction  of   31,  32,  33,  52 

historical  summary  of 3-28 

review  of  particular  acts  of — 

Maryland  Act  of  1791 3 

Pennsylvanici  Act  of  1803 3 

Camden  Act  of  1820  (text) 4 

Trenton  Act  of  1835  (text) 8 

Fixed  Machinery  Act  of  1845  (text) 11 

Newark  Act  of  1847  (text) 12 

General  N.  J.  Act  of  1853  (text) 15 

Factory  Repair  Act   of  1855. 23 

General  Repair  Act  of  1859 23 

Stop  Notice  and   Curtliage  Act  of  1863   (text) ....  24 

Curtilage  Act  of  1868 25 

Married  Woman's  Act  of  1870 25 

Docks  Act  of  1871 25 

Apportionment  Act  of  1873 25 

Married  Woman's  Act  of  1876 25 

Release  of  Lien  Act  of  1890 26 

1892 26 

COMMENCEMENT  OF  THE  BUILDING— 

need  not  be  stated  in  lien  claim 97 

CONSTRUCTION  OR  ERECTION  OF  A  BUILDING— 

excludes  what    33,   82 

includes  what   33,  34 

lien  for,  legislative  origin  and  history  of 3-28,  33 

statutory  provision   for 33 

CONSTRUCTION  OF  LIEN  ACTS.     See  Building  lien  leg- 
islation, construclion.  of. 

CONSTRUCTION  OF  TERMS— 

masculine  gender   146 

singular  number   146 

CURTILAGE— 

decisions    as    to    what    is 110 

description  of,  alteration  of 108,  109 

amendment  of 108,  109 

determination  of  108,  109 

omission  of 109 

lands  under  tide  water  as 36 

legislative  definition  of 24,  2^.  28.  109.  110 

15 


226  Mechanics  Lien  Law. 

DEATH  OF  PARTIES—                                                         page. 
practice  in  case  of 129 

DISPUTED  CLAIM  (on  building  fund)— 

notice  of,  effect  of 68,  69 

form  of 180 

verification  of  68,  69 

DOCI^IETED  JUDGMENT— 

circuit  court,  in 116 

execution  upon    116,  130 

index  of   117 

operation  and  effect  of 116 

record  of 116,  117 

review  of 117 

revival  of  116 

supreme  court,  in 130 

DOCKS— 

lienability  of.     See  Lien. 

legislative  origin  and  history  of  lienability  for 26,  84 

EQUITABLE  ESTATES.     See  Lien. 

EKECTION  OF  A  BUILDING.     See  Construction  of. 

ESTATE  BY  ENTIRETY— 

lienability  of 86 

ESTATES  FOR  YEARS— 
lienability     of.     See  Lien. 

legislative  origin,  etc.,  of 16,  77 

lien  upon,  not  lost  by  surrender  of  term 78 

valuation  in  case  of 78 

EXECUTION— 

concurrent  claims,  in  case  of 1-43 

docketed  judgment,  upon 116,  117 

form  of,  general  and  special 202 

general  and  special  judgment,  in  case  of 130 

proceedings  upon    131 

tenor  of  (special) 130 

FEES- 

amending  lien  claim ($0.50) 106 

docketing  judgment   ($2.50) 116 

jiling  building  contract   ($0.12) 98 

lien  claim ($0.12) 98 

recording  lien  claim  per  fol ($0.08) 98 

searching  for  building    contract ($0.06) 98 

lien  claim  ($0.06) 98 

FILING  BUILDING  CONTRACT.     See  Owner's  Liability 
tinder  Filed  Contract. 

effect  of,  as  to  abandonment  of  contract 42 

abrogation  of  contract 42 

alteration  of  contract 76,  77 


Index.  227 

FILING  BUILDING  CONTEACT— (Cont'd).  page. 

effect  of,  as  to  deviations  and  extra  work 42 

liens    37,  47 

substituted  other  contract 42 

effect  of,  if  fictitious 38,  4? 

if  fraudulent 38,  47 

legislative  origin  and  history  of 7,  16,  37 

married  women,  in  case  of 38-41 

mode  of,  requirements  as  to 37,  45-47 

time  of,  requirements  as  to 37 

FIXED  GEARING— 

declared  to  be  a  building 79 

repair  of,  lien  for 81 

FIXED  MACHINERY— 

declared  to  be  a  building 79 

repair  of,  lien  for 81 

FIXTLTRES.    See  Fixtures  for  Manufacturing  Purposes. 

FIXTURES  FOR  MANUFACTURING  PURPOSES— 

criterion  of .  80,  81 

declared  to  be  a  building 79 

legislative  origin,  etc.,  of  lien  for 11,  23,  24,  79 

lien  for.     See  Lien. 

meaning  of  the  words,  fixtures,  etc 79 

particular  instances  of,  and  not  of 80,  81 

repairs  to,   lien   for 81 

rule  as  to,  in  doubtful  cases 81 

FRAUDULENT  ASSIGNMENTS— 

attack  upon  ....'. 76 

INCHOATE  LIEN.     See  Stop  Notice  Claimants. 

INFANTS'  LANDS— 

not  liable  when 36 

JUDGMENT  CREDITORS— 

priorities  of,  as  to  alterations  or  repairs 83 

JUDGMENT  ON  LIEN  CLAIM.    See  Docketed  Judgment. 

amendment  of 125 

conclusiveness  of 28,  125,  126 

concurrent  claims,  in  case  of 142 

docketing  of,  effect  of 116 

execution  upon   116 

method  of 11 H 

effect  of 121,  123 

form  of,  on  verdict 201 

form  of,  rule  for,  on  default   199 

on  verdict    200 

general,  in  what  cases 121,  127 

lien  of   131 

priorities,  determination  of,  by 121 

priority  of   131 


228  Mechanics  Lien  Law. 

JUDGMENT  ON  LIEN  CLAIM— (Cont'd).  page. 

review  of  125 

special,  in  what  cases 121,  127 

tenor   of    127 

validity   of    119 

waiver  of  right  to  enter 127 

LAND— 

lienability  of.     See  Lien. 

LANDS  UNDER  TIDE  WATER— 

lienability  of 36,  84 

LICENSEE'S  INTEREST— 

not  lienable  78 

LIEN.    See  Lien  Claim;   Owner's  Estate;   Suit  to  Enforce. 

attaches  when  35 

concurrence  of  (in  case  of  several) 139 

discharge  of  by  decree  in  foreclosure 144 

decree  to  quiet  title 144 

deposit  of  funds 145 

failure  to  sue 143 

laches. 95,  99,  102-105 

lapse  of  time 143 

payment  143 

release    144 

discharge  of,  form  of  affidavit  for 209 

form  of  receipt  for 209 

power  to  order 102-105 

judge's  order  for 144 

effect  of,  as  to  inchoate  dower 138 

enforcement  of,  extension  of  time  for 99 

equitable  estates,   in  case  of 36 

estate  by  entirety,  in  case  of 36 

estate  for  years,  in  case  of 77 

extends  to  buildings 33,  77,  79,  81,  84,  85 

docks    84 

fixtures   79 

lands 33,  77,  81,  84.  85 

mills,  etc 81 

terms  for  years 77 

given  against  whose  estate 36 

given  for  additions    l 79 

cartage   96 

construction 33,  77,  84,  85 

erection 33,  77,  84,  85 

removal   84 

repair   81,  85,  97 

given  to  whom,  generally   33,  34 

architect 34 

employer,    etc 34 

loss  of.     See  Discharge  of. 

materials  supplied  but  not  used,  for 34 


Index.  220 

LIEN— (Cont'd).  PAGE. 

materials  in  fact  used,  for 95 

particular  instances  of 33 

priority  of.     See  Priorities  of  Lien  Claimants. 

suspension  of  (by  taking  notes) 35 

waiver  of  (by  taking  mortgages) 35 

(by  taking  notes) 35 

(by  taking  security) 35 

LIEN  CLAIM.     See  Bill  of  Particulars;   Lien;  Lien  Claim- 
ants;  Suit  to  Enforce,  etc.,  and  other  titles. 

amendment  of — 

advisory  opinion  as  to 107 

authentication    of 107 

method  of 106 

omitted  curtilage,  in  case  of 109 

particulars  in  which  allowable    107 

not  allowable  107 

period  within  which  allowable 107 

power  to  allow 97,  106 

review  of  allowance  of 108 

apportionment  of — 

failure  to  make,  effect  of 112 

method  of  making 112 

release   of  part,   in   case   of Ill 

statutory  provision  as  to  Ill 

suit  to  enforce 112 

assignability  of   .34,  35 

contents  of — 

bill  of  particulars   92 

builder's  name   92,  96 

description  of  Imilding 92,  95 

curtilage   92,  95 

owner's  name   92,  96 

endorsement  on — 

omission  of   99,  101 

to  be  made  when 99,  101,  119 

errors  in — 

amendable    97 

curable,  in  equity 97 

by  filing  new  claim 97 

filed  (to  be)— 

when 92,  94.  95,  99 

where    92 

why    95 

form  of — 

in  apportionment  case 187 

for  constructing  and  altering 186 

against  one  as  owner  and  builder 185 

contractor  against  owner 182 

against  different  persons  as  owner  and  builder 185 


230  Mechanics  Lien  Law. 

HEN  CLAIM— (Cont'd)  page. 

judgmetit  upon,  validity  of  delayed 105 

misstatements  in.  result  of 93 

owner's  name  (change  of  title) 96,  133 

validity  of,  as  to  innocent  mortgagee 95 

verification  of,  by  whom   93 

necessity  for    93 

LIEN  CLAIMANTS— 

marshaling  securities,  rights  as  to 138 

priorities  of.     See  Priorities  of  Lien  Claimants. 

LIEN  DOCKET— 

entries  in,  extension   of  time  for 99 

particulars    of 98 

LIEN  ON  MUNICIPAL  IMI'ROVEIklENT  FUND— 

abandonment  of  contract,  in  case  of 162.  163 

action  to  enforce — 

begun  (to  be)  when 158 

consolidation  of  (several) 163 

costs  in   164 

defenses  in  162 

judgment  in,  not  to  bar  personal  action 164 

to   be  what 161,162 

to  decide  what   161 

nature  of   162 

necessity    for     158 

notice  of,  to  be  given 158 

parties   in    159.  161 

practice  in   162 

trifling  claim,  in  case  of 160 

waiver  of  assignee's  rights,  as 160 

assignment  of.  effective  when 160 

attaches  when 158,  159 

concurrent   remedy,  a 154 

discharge  of,  by   certificate 164 

by  decree    164 

by  lapse  of  time 164 

bv    satisfaction 164 

extent  of.  .... ! .152,  154,  158,  159,  161 

given    against    what    municipalities 153 

given  for  what   157 

given  to  whom    152,  153 

laborers'  preferences 163 

notice  of.  filed    when    155 

filed  with  whom 155 

record  of   158 

requisites  of 154.  157 

verification    of 156 

over-claim,  efi^ect  of 156 

I)erfected,  how    152 

waiver  (non)  of,  by  taking  assignment 160 


Index.  231 

PAGE. 

MARRIED    WOMAN.     See   Building    Contract;    Filing    of 
Building  Contract;   Married  Woman's  Lands. 

consent,   inability  to    86 

dissent  (statutory),  form  of  182 

provision  as  to   85 

knowledge  of  building,  as  to  her 86 

MARRIED  WOMAN'S  LANDS— 

lienability  of 36,  85,  86 

constitutionality  of  statute  as  to   86 

legislative  origin  and  history  of 25,  85,  86 

MATERIALMEN.     See  Stop  Notice. 
stop  notice — 

legislative  origin  of  right  to 24,  25 

MILLS,  ETC.— 

lienability  of.     See  Lien. 

MORTGAGE.     See  Mortgages  and  other  titles. 

creation   of    139 

MORTGAGES.     See  Bona-fide  Mortgagees. 

MUNICIPAL  IMPROVEMENTS.     See  Lien  on  Municipal 
Improvement  Fund;  Municipal  Lands. 

MUNICIPAL  IMPROVEMENTS  ACT. 

construction  of  terms  in 164 

origin   of    149 

repealer  in   165 

review  of  provisions  in 149 

table  of  cases  arising  under 151 

MUNICIPAL  LANDS- 

non-lienability  of 36 

NON-COMPOS— 

lienability  of  lands  of  persons 78 

OWNER'S  CONSENT  TO  LIEN— 

form  of   J   181 

given  how   7  r ,   (9 

particular  instances  amounting  to 77,  78 

particular  instances  not  amounting  to 77,  78,  82 

when  necessary  77 

when  unnecessary  90 

OWNER'S  ESTATE— 

necessary  to  lien 36 

OWNER'S    LIABILITY    UNDER    FILED    BUILDING 
CONTRACT— 

maturity  of,  upon  dispute  and  arbitration 42 

upon  performance,  etc 41.  173 

in  case  of  stipulation  for  release 175 


232  Mechanics  Liex  Law. 

PLEADINGS  IN  SUIT  TO  ENFORCE  LIEN—  page. 

abatement,  plea  in 123 

apportionment  cases,  in   122 

builder,  may  plead  what 120,  124 

conditions  precedent 122,  124 

declaration  in — 

form  of,  on   common   counts 193 

on  sealed  contract 195 

recitals  in   120,  122 

schedules  to    120,  123 

tenor  of 120'  122 

defenses  relinquished,  plea  of 125 

demurrer    123 

insufficient  defenses   125 

lands  not  liable,  plea  of 124 

materials  not  used,  plea  of 124 

mortgagees,    may   plead   what 120,  121 

form  of  pleas  by 199 

owner,  may  plead  what 120,  125 

form  of  plea  by 198 

set-ofF,  pleading  matter  in 124 

variance   in    124 

PRACTICE  IN  SUIT  TO  ENFORCE  LIEN— 

api)ortionment  cases,  in 122 

death  of  parties,  in  case  of 129,  130 

filing  declaration,  as  to 122,  123 

interlocutory  orders,  as  to 125 

judgment,  form  of,  as  to 127 

method   prescribed   for 120 

references,  as  to 123,  127,  128 

serving  declaration,  as  to 123 

special  verdict,  as  to   126 

PREFERENCES.     See  Stop  Notice. 

PRIORITIES     OF     LIEN     CLAIMANTS.     See     Advance 
Money  Mortgages;  Bona  Fide  Mortgagees;  Bona  Fide  Pur- 

chase7-s;   Judgment  on  Lien  Claim. 

building  only,  as  to  the 134 

inter  se  (none)   139 

other  encumbrancers,  as  to 134,  135,  139 

purchasers   in  foreclosure,  as  to 138 

purchase  money  mortgages 136,  137.  138 

purchasers  pendente  lite 118,  119 

PROCEEDS  OF  SALE,  DISTRIBUTION  OF— 

application  for,  notice  of 207 

caveat  against,  provision    for 140 

form  of 203 

dilemma  as  to 206 

method  of   139 

order  for,  form  of 208 


Index.  233 

PROCEEDS  OF  SALE,  DISTRIBUTION  OF— (Cont'd),   page. 

petition  for,  form  of 204 

power  to  effect 121,  140,  141 

practice  on  application  for  142 

rule  to  show  cause  against,  form  of 207 

sheriff  (by  the)  out  of  court 141,  142 

PURCHASERS.    See  Bona  Fide  Purchasers. 

PURCHASE  MONEY  MORTGAGES— 

priorities   of 136,  138 

PURCHASERS  PENDENTE  LITE— 

rights  of   118,  119 

REMOVAL  OF  A  BUILDING— 

lien  for,  provision  as  to   84 

legislative  origin,  etc.,,  of  lien  for 84 

REPARATION  OF  A  BUILDING— 

lien  for,  provision  as  to 81 

legislative  origin,  etc.,  of  lien  for 11,  23,  81,  82 

priority  of  lien  for  82 

REPEALER  OF  PRIOR  BUILDING  LIEN  ACTS— 

effect  of,  as  to  vested  rights 146 

as  to  prior  repealed  acts 145 

STOP  NOTICE.      See  Disputed  Claim;  Stop  Notice  Claim- 
ants. 

action  at  law  upon — 

averments  in 65,  66 

costs  in   67 

declaration   in,  form  of   178 

defenses  in   66,  67 

judgment   in    67 

jurisdictioin    of 65 

proofs   in    65 

quantum  meruit  count  in 65 

right    of,    accrues    when 65 

setting  oft'  prior  notices  in 67 

contents  of  48,  62,  63 

effect  of — 

as  an  assignment  63,  64 

builders'  sureties,  as  to  64 

generally,  as  to 48 

trustee  in  bankruptcy    64 

false  contract,  in  case  of 57 

form   of    176 

interpleader  suit  upon — 

costs   in    68 

list  of  reported  cases  of 68 

pleading   in    68 

practice  in   67 

right  to  institute,  exercisable  when 67,  68 


234  Mechanics  Lien  Law, 

STOP  NOTICE— (Cont'd).  page. 

legislative  origin  and  history  of 10,  16,  24,  25,  48,  50,  52 

married  woman  owner,  as  to 87 

may  be  given  by — 

assignee  of  claimant  54 

builder's  journeyman    48 

laborers    48 

materialmen    48 

sub-contractor    54 

may  (perhaps)  be  given  by  journeymen  who  have  also  a 

lien    55 

laborers  who  liave  also  a  lien  .  .    55 

may  be  given,  how    48 

when    48 

may  not  be  given  by — 

builder's  general  creditor  54 

materialman  who  can  have  a  lien 55 

sub-contractor's   creditor 53 

public  buildings,  in  case  of 57 

service  of — 

method  of  making 63 

notice  of,  form  of 177 

settlement  of  claim  under,  effect  of 48 

signature  to   62 

tenor  of   62,  63 

waiver  of  rights  under 66 

STOP  NOTICE  CLAIMANTS— 

inchoate  lien  of 70-75 

must  show — 

builder's  indebtedness   58 

builder's  refusal  to  pay 62 

building  contract  filed 58 

indebtedness  due   59 

materials,  etc.,  use  of 59 

owner's  estate   58 

owner's  satisfaction  with  claim 63 

sei'viee  of  notice 62 

timely   demand 59 

true  demand 60 

preferences  of  (journeymen,   etc.) 70 

(generally)     70,  72-75 

priorities  of,  inter  se 71 

SUIT  TO  ENFORCE  BUILDING  LIEN— 

absent  defendants  in,  how  served 114,  115 

appearance  of  defendant  in,  effect  of 119,  127 

api>ortionment  cases,  in  112,  118 

begun  (to  be) — 

how 113,  114 

when  (in  case  of  notice) 99 

when  (in  case  of  no  notice) 99 


Index,  235 

SUIT  TO  ENFORCE  BUILDING  LIEN— (Cont'd).  page. 

costs  in  1-1 

evidence    in 1-3 

execution  in.     See  Execution. 
extension  of  time  to  prosecute — 

discussion  as  to 102,  105 

form  of  agreement  for ISS 

judgment  in.     See  Judgment  on  Lien  Claim;  Docketed 
Judgment. 

jurisdiction  of 113,  114,  117 

laches  in  prosecuting — 

how  established   102,  105 

what  is 102,  10.5 

nature  of H  ^ 

notice  to  begin,  effect  of   99,  100 

form  of   189 

pai'ties  defendant — 

generally 28,  113,  114,  117,  118,  119 

in  case  of  death 120 

pleadings  in.     See  Pleadings  in  Suit  to  Enforce  Lien. 
practice  in.    See  Practice  in  Suit  to  Enforce  Lien. 

pre-requisites  to   117 

prosecution  of,   diligence   required 99 

reference.     See  Practice  in  Suit  to  Enforce  Lien. 

special  verdict  in,  necessary  when 12<> 

stayed  how    143 

when    14"' 

summons  in — 

directed  how 113.  115 

duplicate  of  whe)i  issued   113,  115 

form  of    113,  114.  189 

returnable  how   113,  115 

service  of,  defective   119 

how  made 113,  115,  119 

how    returned 114,  115,  120 

how  returned   (forms) 190.  192 

recital  of  122 

where  made   113,  115 

tested  how 113.  115.  119 

surplus  proceedings  in.     See  Proceeds  of  Sale,  etc. 

unnecessary  when    105 

variance  in  118,  121,  124 

TABLE  OF  STATUTES  (1853-1898) 26 

TRANSITORY  SEIZIN— 

insufficient  to  support  building  lien 36 


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